Secrecy

This chapter was prepared by Paula Litvachky, Margarita Trovato, Tomás Griffa, Juliana Miranda, Andrés López Cabello, Ezequiel María and Federico Efrón, members of CELS' Working Team.

After the 2001 attacks on the United States, surveillance and secrecy became the guiding principles behind many state responses to so-called “new world threats.” The fights against terrorism, drug traffic, migration and organized crime moved to the center of the national security agenda. In addition to military strikes from other States, “hybrid” and transnational threats have also been invoked to justify more repressive deployment because these allegedly put the nation and its institutional order at stake. This State rationale and ideology of order – which pits supposed social peace against the chaos of conflict – give credence to an expansion of the security and intelligence apparatus. It is a model of State that compiles and uses an ever greater quantity of information, broadens its roles of repression, invades individual privacy, restricts democratic controls, and aims to justify all by invoking reasons of national security. It is a State that needs secrecy to function.

Over the past few years, the Argentine government has decided to adhere to this paradigm both in policy and ideological terms¹. The tipping points were Decree 683/2018, which modified the rules governing the National Defense Act and assigned some security tasks to the Armed Forces, and Decree 703/2018, the National Defense Policy Directive, which expressly defined defense guidelines. Since late 2015 until now, the government’s stance on security and defense has been centered on the “war on drugs and terrorism,” on establishing information exchange agreements in cooperation with other countries, on the purchase of arms and software, and on a notable increase in the intelligence budget.

The main spokesperson for this policy has been Minister of Security Patricia Bullrich, who expressed the synthesis between strengthening the State’s military and policing fronts, reducing the public space for demonstrations of conflict and dissent, and promoting arms deals and technologies used for social control. Their position is aligned with the United States and Israel in global and regional debates. In November 2016, Bullrich and a delegation from the Ministry of Security attended the 4th International HLS & Cyber Conference in Tel Aviv, one of the largest security business fairs in the world. The fair plays host to countries, companies and lobbyists, who fuel the paradigm of “21st century threats” through agreements and purchases of arms and surveillance software. According to an explanation by Argentine-Israeli Mario Montoto, Chairman of the Chamber of Commerce and advisor to the Ministries of Security and Defense:

That trip produced agreements and significant purchases of war materials and surveillance technology. In this regard, the minister reported, “Argentina will put technology in place to end the triple border problem.”

The Cambiemos administration conjectured that new technologies are needed to increase surveillance and personal information gathering capacities to confront global risks, in addition to other investigatory tools that invade privacy. The State launched new and old, legal and illegal practices for the surveillance and criminalization of social activists, leaders and organizations. Some of these are not new or exclusive to Argentina. Others seem to belong very much to this moment: in particular, the expansion of the agenda, the security and intelligence apparatus, and State secrecy, which it justifies based on risks to national security. Like some new brand of common sense, the official rhetoric assumes that increasingly invasive tools of surveillance must be part of political and social life. That the State watches in order to investigate and take care of us. This supposed political reality requires a weakening of democratic controls, because expectations with regard to transparency and access to information are presented as incompatible with national security demands. Thus, today there are practically no channels to obtain information about the legality of the use of these tools of control and surveillance.

1. Secret Intelligence Terrorists invented

Anil Baran, of Turkish nationality, travelled from Córdoba to the city of Buenos Aires (CABA) to do the paperwork to get Argentine citizenship. He was detained on Oct. 24, 2018 by police personnel, and accused of having taken part in violent incidents during a protest outside of Congress. After three months, the prosecutor of first instance affirmed that there was no evidence to support the accusation and dismissed the case. But before that, the national government had backed the police version of the arrest and tried to deport Baran. Various media outlets joined the spreading of “inside” information claiming that other detainees were intelligence officials for foreign governments and that Baran was a “terrorist” trained to incite unrest during the G-20 Summit.

Baran asked the Ministries of Foreign Relations and Worship, Security and Defense, the National Migrations Office and the Federal Intelligence Agency (AFI) to disclose what information they had on him. Security and Foreign Relations responded without adding any relevant information. The response from the Ministry of Defense was that it would only provide information under court order, despite the fact that Law 25,326 requires public databanks to disclose any such information they have on the person requesting it to that person. The AFI rejected his request without explanation. The National Migrations Office denied the access request, which led him to file a complaint with the National Office of Personal Data Protection. In the end, Baran was only given access to the Migrations file containing a petition from the Ministry of Security for a decision on immediate deportation, which it did not get. There is no information in that file to support deportation. So either it was produced by another agency or the authorities attempted to deport him without grounds. The file was also not closed once the court closed of the case.

The government took advantage of the arbitrary detention to cast him as a “destabilizing” agent, out of prejudice based on his origins and supposed intelligence information. When proof was demanded, these agencies claimed state secrecy to avoid responding, while others gave redacted information. None of them explained the source of the version that Baran was a terrorist or that he was a destabilizing agent that should be deported because he was violent or was a foreign agent. This was all part of a campaign to stigmatize foreigners and tighten migration policy.

The government also used the G-20 summit to toughen its rhetoric against social protest and exaggerate the “war on terrorism.” It spread information on the national and international organizations that organized the counter-summit, associating them with supposed destabilizing maneuvers. In addition to actions of surveillance at protests, they added something worse: they spread the story that these organizations were under investigation for suspicious funds transactions and foreign connections. In this case, they also sent damaging information to the media, claiming, for instance, that the headquarters in Argentina of Attac, one of the counter-summit organizers, was under investigation by the Office of the Inspector-General for Justice and money-laundering regulator entities; they even filtered secret banking data on the organization. Attac denied the accusation and ultimately no formal investigation was brought against it. However, these maneuvers raised fear. The organizations identified as destabilizers were protesting the economic agenda of the G-20 member countries.

Overreaction was also at its peak during the G-20, with the detention of brothers Kevin Gamal and Axel Ezequiel Abraham Salomón. These two young members of the Muslim community in Argentina were accused of belonging to Hezbollah. The Delegation of Argentine Israeli Associations (DAIA) reported them to the Anti-terrorism Investigation Unit of the Federal Police. The case file was opened on Jan. 31, 2018, with an anonymous email that mentioned alleged military training of the accused in Lebanon and possession of an AK 47. It wasn’t until Nov. 13, when the Federal Police detained them in a spectacular raid in the Flores neighborhood, that they learned of the report. Two days later, the Ministry of Security reported, “After technical analysis of their different social media profiles, particularly Facebook, security agents were able to individually assess the profiles of the parties under investigation and corroborate the contents of the claim against them.” This report omitted the fact that Federal Judge Rodolfo Canicoba Corral had dismissed the DAIA claim after failing to find any connection between the two brothers and supposed terrorist cells. The federal judge had sent the case to the ordinary courts to investigate possible illegal arms possession. In September 2018, the DAIA had ratified the claim in national Court No. 36 and provided the address of the gym where both trained. That month, after a few intelligence tasks by the City Police, the state prosecutor on the case alleged lack of jurisdiction on the basis that, as the accused were potentially linked to terrorist organizations, the case should be investigated by a federal prosecutor. One of the key elements he highlighted was that the family’s wholesale cleaning supplies business had few customers coming in. The defense argued that the business’s main client was a Jewish community school located just meters away from the business. Once the investigation made it back to the federal level, the judge ordered the raid and the arrest of Kevin and Axel. On the day of the arrest, Patricia Bullrich said the Ministry of Security and the AFI had been investigating them and had arrested them based on “lots of information from US, British and Canadian agencies.”

The Salomón brothers spent 22 days in custody in the Ezeiza penitentiary. They were denied release; meanwhile, the media associated the case and others with “anarchist violence” that, according to the minister, put the “State at risk.” Nearly five months later, Judge Sebastián Ramos dismissed the case.

The entire montage of this operation forced the Muslim community to explain that the brothers were not terrorists. Their names, addresses and religion were repeated over and over across the media. The upheaval was huge for them and their families. Once they were released, they described what they had been through. Kevin Gamal summed it up as follows: “The State exposed us to the media, showing our names and faces. I lost my job, fell behind in my studies; if you google me, I show up in handcuffs next to federal agents, the weapons of my great grandfather and under headlines like ‘terrorist’.”³

As mentioned, the source of this campaign was an anonymous email to the DAIA, but neither the computer nor the account that received the message were examined during the investigation. No explanation for this was given. The intelligence activities behind the arrests remained under secrecy, the same as the supposed investigations into alleged money laundering by organizations opposing the G-20. Under the pretext of national security, the Executive Branch once again pushed the limit separating legal intelligence gathering and illegal spying. The surveillance of organizations and individuals based on their political opinions or their nationality is not terrorism prevention; it is illegal espionage against dissidence. Its spread does not seek anything other than to demonize and intimidate certain sectors and social groups. In this logic of secrecy, the Judiciary validated the information production plot line: it released those falsely accused, but did not dismantle or criticize the apparatus of information production and security that led to the accusations and the political-media deployment.

Persecution of activists

One year later, the 11th World Trade Organization (WTO) Ministerial Conference took place in December 2017. Several members of the organizations with accreditation to attend forums received an email on Nov. 29 from the WTO Foreign Affairs chief informing them that the Argentine government had decided to cancel their credentials. The episode raised the alarm about secret surveillance practices the government was deploying in the name of “national security.”

Around 60 Argentines and foreigners were disaccredited. On December 2, the Argentine Ministry of Foreign Affairs reported:

In other words, the element of danger was based on analysis of personal expressions and background gathered from social media. The list of persons created by the “Security team,” according to the Foreign Ministry, was sent to Migrations and the WTO.

Nevertheless, some activists decided to come to Argentina anyway. Various among them were delayed at Ezeiza International Airport and others were directly denied entry. In the face of this situation, CELS filed a habeas corpus, after which the State ceased to delay anyone else at the airport. But the foreigners already detained had to seek support from their own countries to review their exclusion, while Argentines considered dangerous by their own government were not allowed to enter the conference.

Two issues arise related to the official report. First, that some state agency gathered and analyzed information on those who had requested accreditation, data supposedly sourced from social media. Second, that some organ of the Executive Branch considered that these were “persons associated with disruptive and/or violent aims” based on their “background” and sent that list to the WTO to bar them from attending the conference, and the National Migrations Office to bar the foreigners among them from entering the country.

In summary, an agency of the Executive Office ordered intelligence gathering on WTO-accredited parties and restricted their rights because it considered their public expressions and opinions constituted a “desire to incite intimidation and chaos.” Removing their accreditation for this reason is pure conjecture, since the so-called “expressions” were never explained. CELS was only able to reconstruct through the courts that the AFI had sent information to the Foreign Ministry on the persons affected – a sort of right to admission into the country and the conference, without an explanation as to the criteria or justification for the disaccreditation in each case. This occurred even though the National Intelligence Act prohibits all organizations from

This law, passed in 2001 during the government of the Alliance as part of a post-dictatorship political agreement, expressly prohibited agencies in charge of intelligence from engaging in political espionage of any kind.

In response to an access to information request and habeas corpus filed by CELS, the Foreign Ministry submitted the notes it had sent to the WTO requesting the disaccreditation of certain activists, and the list of foreigners sent to Migrations to deny them entry into the country. The Ministry did not provide information on how that list had been compiled, the information supporting the disaccreditations, nor whether this data had been compiled and recorded in any state agency. Furthermore, the Ministry redirected CELS’ request to the Ministry of Security and the Federal Intelligence Agency (AFI). Security responded that it did not have public or personal information on the persons in question, while the AFI sustained, in a note also bearing a security code, that the information requested was top secret and that neither the Law on Public Access to Information nor the one on Personal Data Protection applied to that agency. It refused to even confirm if it had information or not.

In regard to this last point, the AFI explained:

This response provides clarity: any person may be subject to state intelligence because they may be related to criminal activities within its jurisdiction. The AFI affirms that it is not obligated to justify what objective standards authorize it to compile, collect and evaluate personal data. Nor does it consider it must respond to injunctions for these criteria or for the concrete motives behind a surveillance.

There is no way to know, then, if the AFI collects data on persons or organizations, nor on the basis of what circumstances – either legal or illegal – it decided to do intelligence on these “targets,” because it will always respond that intelligence activities do not fall within the scope of oversight. This is clearly a catch-22 argument: if no one can know what actions it takes, how can there be political and judicial oversight of the agency to ensure that they are legal? Furthermore, the AFI is not a criminal investigation agency, even though it aims to be and is requested to perform as such. Criminal investigations operate under a different logic, which is precisely that they allow for defense at trial.

The AFI’s response does not reveal what concrete circumstances lead it to associate the party requesting the information with any hypothesis of national security threat. This situation entails the denial of the right to information access, but it also involves something much more serious: it puts the possibility of defending oneself in the face of state suspicion at stake. How can the State sustain that level of uncertainty about whether a person is being investigated for terrorism or drug trafficking and deprive them of their right to a defense? How can anyone build a defense if they don’t know why they are being accused or their rights violated? How to ensure that, once any criminal suspicion is discarded, their personal data will be destroyed? Does the Executive Branch not have to report what data it has compiled even under court injunction? Is it a state requirement to keep that secret?

The official decision to disaccredit activists at the WTO Summit was based on information compiled by the AFI, which was used to restrict their rights to assembly, freedom of expression and privacy. It is possible that this information, or part of it, came from social media, generally called “open source” because access to that data does not require an intrusion, be it legally, such as a court order to tap a phone in a kidnapping investigation or illegally. But just because the source is “open” does not automatically make the intelligence work legal. First, people have a logical expectation of privacy that is violated when surveillance over them is massive and systematic. Furthermore, the use of information gathered from open sources may be illegal if it violates the categories prohibited under the National Intelligence Act, in this case for political reasons (Art. 4, Sect. 2 of Law 25,520).

The government has expanded its intelligence practices and carried them out in greater secrecy for reasons of “national security.” Suspicion activates the gears of state surveillance, but there is no explanation to justify that suspicion or the actions derived from it. The political support for the AFI’s refusal to provide information reinforces the uncertainty. According to this logic, everyone is subject to surveillance and no one can know if they are being investigated.

2. Secret policies

An AFI without oversight

The national intelligence system has always been guided by the logic of secrecy. Since its beginning, it has been associated with the doctrine of national security of the military sort, the political culture of espionage and, after the attacks on the Twin Towers in September 2001, the justification of the doctrine of "new threats." In 2015, after the crisis generated by the death of prosecutor Alberto Nisman and the ousting of Antonio Stiuso from the Secretariat of Intelligence, the National Intelligence Act was reformed and its opaqueness modified in part with the introduction of rules on greater public disclosure. But the law had its limitations and essential aspects of it remained subject to regulation. Decree 1311/2015 regulated important issues such as the system of reserve funds, procedures for declassifying information and a more transparent organizational structure. However, those normative changes – which had also not been fully implemented – were dismantled by President Mauricio Macri under Executive Decree 656/2016.

In response to information access requests submitted by CELS, the Executive Office and AFI explicitly said that all information related to national intelligence had gone back to being absolutely secret for reasons of national security. The AFI went so far as to classify its own response as secret:

According to the AFI, the information it produces, its regulation and activities are secret. This covers everything: overall policy, structure, the tasks it carries out, implementation of funds, information produced and personnel payrolls. The AFI does not provide any information publicly or justify the restrictions it puts on access to information.

But this interpretation contradicts Art. 16 bis of the National Intelligence Act, which establishes three security classifications: secret, confidential and public. It also ignores constitutional and international standards regarding the right to public information access. These standards require the State, even when it alleges exception due to national security, to justify the restriction and clarify the criteria on which the secret or confidential classification is based⁴. Therefore, the AFI is operating as if it were exempt from the standards that establish checks on its operations.

Upon an initial request for access to information in 2016, CELS inquired about the regulation of reserve funds, a large percentage of the AFI's budget for which no one is accountable. These funds provide for covert operations and actions, as well as the setup of shell companies, the use of inorganic agents and payments to informants. They are the resources that bankroll agent networks, both legal and illegal. The law requires that organizations in the system have registration procedures and accountability for these funds, with all possible support documentation.

The request was originally submitted to Chief of Staff Marcos Peña, but the response came from AFI Director Gustavo Arribas: "Diverse procedures and controls have been established and are in force as part of a system of funds management that reflects the highest standards of transparency and professionalism." It did not specify any procedure nor where the supposed controls in force were regulated.

Moreover, Arribas appealed in abstract to the system of secrecy under the Intelligence Act, even to refuse informing on the existence or not of general administrative regulations. Nor did he respond as to what policies had been developed to provide transparency to intelligence activities, or how he planned to comply with Decree 812/2005, which lays out the commitments adopted by the Argentine State in the AMIA case before the Inter-American Commission on Human Rights (IACHR), whereby it must provide transparency as to the system of controls on reserve funds. He also refused to respond to the attempt to find out how the security categories were regulated for classifying information and the timeframes and procedures for its declassification; if intelligence information exchange agreements exist with other countries⁵; and the number, safeguard mechanisms and parliamentary oversight of phone taps for reasons of intelligence.

In response to the AFI's absolute refusal, CELS filed an amparo with the courts. The judge of first instance validated the Agency's interpretation. But at the end of June of this year, the Contentious-Administrative Federal Appeals Court partially recognized the right of access to public information. In the court's first ruling against the AFI for a claim of this type, the judges sustained that, even in the case of intelligence information, the principles of the right to public information still apply. The court affirmed that the Intelligence Act specifically regulates the Agency's activity, but that a request for access to information cannot be disregarded per se without a judicial evaluation as to whether an exception applies in the case of an issue of national security or defense, whereby secrecy must prevail. In this sense, it asserted that not all information in the AFI's possession is necessarily secret and required the Agency to submit the rules applying to the declassification of information, one of the points requested in the amparo, to enable it to assess whether the refusal to provide access was arbitrary or not. If the ruling becomes final, the AFI will have to provide those rules, which will reveal what is classified and what is not, and thus dismantle the absolute secrecy it intends to maintain. The problem in general, even in this scenario, is that the judges are hesitant to review the content of what is secret or the exceptions alleged by intelligence organizations, conceding the justification in the name of defense and national security.

The AFI again refused to provide information in 2018, when CELS inquired about the disaccreditation of participants at the WTO Summit.

Bureaucratic silence at the Ministry of Security

Since late 2015, the ministry leadership under Patricia Bullrich has promoted an active policy of inserting Argentina into the global coalition against "new threats." The minister has traveled on repeated opportunities to the United States, Israel and the UK to generate a "common working agenda" with those countries, that has included agreements on security, cybersecurity, technology acquisition and information exchange. Official communication has shown these activities to be a key part of security policy and positioned Argentina in the fight against threats to national security and public order. According to this logic, the State must increase its surveillance over the population to protect it from these undetermined dangers. Beyond what has circulated in the press, very little is known about these agreements.

This policy of secretly expanding intelligence and surveillance activities was uncovered in 2017 when the Operation Hurricane scandal broke in Chile, which sought to criminalize Mapuche communities and organizations and activists supporting them. The judicial investigation into how the illegal espionage was carried out, with responsibility reaching the head of Carabineros intelligence and members of the Public Prosecutor's Office, revealed a very well-oiled link of intelligence information exchange between Argentina's National Gendarmes and Chile's Carabineros, with validation from both Argentine and Chilean political authorities⁶. The documentation available shows that the illegal collaboration seeks justification in the name of national security for what they call the "Mapuche conflict," which is given a "subversive" connotation. Included among the documents and chats was information sent by the Gendarmes to the Carabineros on the disappearance of Santiago Maldonado, minutes from meetings of the intelligence chief offices for both forces, migrations reports, references to personal data on activists and communities. Our analysis leads us to suspect there was triangulation of communications captured by the Carabineros on Argentine citizens. These surveillance practices reported, and now known, are framed within the Ministry of Security's positions; in response to the environmental conflicts over land in Patagonia, it distributed the "R.A.M." report, which associates indigenous communities with acts of destabilization and violence. The regulations for these exchanges and collaboration agreements are kept secret.

CELS sent 30 public information requests between 2016 and 2018 to the Ministry of Security regarding agreements entered into by the Ministry with other entities or governments, regulations and protocols, repression of social protests and other incidents of institutional violence, functions of dependent offices and programs, administrative inquiries for irregularities by federal security agents, and data on detentions and use of force. The ministry did not always invoke reasons of “national security” to reject our requests. It also resorted to bureaucratic silence in response: sometimes it didn’t respond at all, and others, even when there was a formal reply, it omitted the points requested. Secrecy – in the name of national security – and silence fuel each other.

Bureaucratic silence was the response to our request for information on the agreements signed by the minister on her visit to the US Southern Command Headquarters in May of 2018, and about the design of the operation in which Rafael Nahuel, member of the Mapuche community of Villa Mascardi, was killed.

Under this same logic, they kept silent about matters related to defense policy and actions by the Armed Forces on internal security tasks. After launching Operation Integration North (Ministry of Defense Resolution 860/2018), the government established that the Armed Forces fulfilled duties of logistical support, operational training and support for the community on Argentina’s northern border. The “rules of conduct” for soldiers assigned to that operation were declared under “military secret.” This had not happened in previous Defense administrations – even in this same government, under Julio Martínez – that implemented operations on the northern border. This makes it impossible for the country’s inhabitants to know what the military must or must not do in the Integration North campaign. This poses an obstacle to civilian oversight of military action, while it deepens the role of the military in the internal security setting. By extending this use of military secret to security operations, the ministry has also made it impossible to know most of the policy guiding its actions.

3. The Spy State

In the policy framework of expanding state surveillance networks and investigation in the “fight against threats,” the government and various judicial actors have sought to incorporate invasive digital technologies into the intelligence and criminal investigation systems. Advanced technology has opened the doors to covert state interventions that can affect people’s private lives and their political and social activities. The concern over the use of these tools and their effects on human rights and democratic life is a global one. In Argentina, we have yet to develop a regulatory framework and real mechanisms of control, while there is no doubt as to the existence of an extensive network of illegal intelligence information exchange, extortion and political espionage, with heavy state presence. Despite the fact that at this point, the illegal ties between intelligence structures and the judicial and political sectors cannot be concealed, most of the political system accepts the expansion and ramification of the tools of surveillance and mass information production.

Welcome to Argentina, Rafael

In October 2018, just before the G-20 Summit in Buenos Aires, the Ministry of Defense purchased surveillance software from a private company, Rafael Systems, in the context of the Memorandum of Understanding on Industrial and Technological Cooperation on Defense signed between Argentina and Israel in 2010. Approval of the expenditure derived from the Implementation Agreement between the two countries’ defense ministries was published in the Boletín Oficial (official government bulletin). Under that agreement, the Argentine Ministry of Defense agreed with Israel to contract goods and services for the Core Project of the Computer Security Incident Response Team (Csirt) and the Computer Emergency Response Team (CERT). The main contractor for the project was the Israeli state company Rafael Advanced Defense Systems Ltd., on behalf of the Israeli Ministry.

In different articles in the media related to the G-20 Summit, the government spread the news about hiring Rafael Systems. The company develops tools that use artificial intelligence and machine learning to monitor open sources and process that information based on the parameters selected for the information sought. This allows it to, for instance, understand or predict actions that activist groups could be organizing through their social media. The agreement has ten appendices that are not public, nor is the purpose of the contract or the nature of the goods and services that Rafael Systems provides. However, the information available does suffice to affirm that it consists of surveillance software with the potential to disproportionately affect the privacy of internet users.

The media echoed the potential use it would have after the G-20 ended:

Argentina does not have a regulatory framework or control mechanisms over this type of tools that in other countries are used for illegal mass surveillance.8 Nor is there any regulation of what is understood as open sources or what it is legal to do with such information – uncertainties that can enable prohibited practices. The software was acquired and operates under conditions of secrecy, as far as we know, no State body has verified its use, who manages it or if it is proportionate to the danger it seeks to prevent. In other words, there is no way to know if it adheres to the provisions of the Intelligence Act or if it is illegal surveillance or intelligence.

On April 25, 2019, the city of Buenos Aires began implementing a facial recognition system to detect and detain persons with an arrest warrant. According to Vice Chief of City Government, Diego Santilli, in charge of the local Ministry of Security, this system allows for a swifter search of "forensic material," i.e. proof that used to require many hours of examination can now be processed automatically. The system will use the installed capacity of cameras and monitoring sites in the city, which, according to the government, already has 10,000 devices in place⁹.

Experience with the use of this technology in other places has not been successful. In South Wales, for instance, there were 92% false positives in a recent episode, according to police data¹⁰, and it was 0% effective in New York, according to an internal email from the Metropolitan Transportation Authority (MTA) that the Washington Post gained access to¹¹. False positives are not harmless: they force people under suspicion to prove their innocence. In the city of Buenos Aires, mass facial recognition did not pass through the Legislature or involve any type of political discussion. The software, how it was acquired, who implements it or under what regulations or control mechanisms are not known.

When investigating is spying

The tendency to expand the state's capabilities to invade privacy has also reached the arena of criminal investigation. During 2016 and 2018, deputies and senators in Congress debated the intentions of the Executive Office and some political forces to modify the federal criminal procedural system and incorporate new investigatory techniques involving some type of surveillance: acoustic, remote information systems and tracking and localization devices. Remote access to mobile phones can lead to covert, real-time monitoring via the phone's camera, microphone or GPS. These technologies enable screenshots of what the person is seeing, monitor their keyboard clicks and what they write (user names, passwords, search history), in addition to all communications (messages, emails, calls). It is also possible to manipulate, adulterate or erase stored data. Moreover, all these activities can be carried out without leaving a trace. A diverse group of organizations¹² expressed strong criticism, and different opposition blocks rejected the chapter the government had added to the procedural reform bill. It ultimately was not passed.

The Executive Branch of the city government also tried to push these measures, although the kind of complex crime investigation that would require such tools is not within the purview of the local justice system. This further highlighted the political receptiveness of the business, police and intelligence lobbies to attain such technology and its potential uses. Various specialized and human rights organizations managed to put the brakes on more problematic measures of electronic surveillance, but figures like undercover agents and paid informants have been incorporated, which generated controversy nationally when they were added under Law 27,319.

The Supreme Court as part of the intelligence system

The matter of intelligence or judicial bugging is another area of debate, which shows the state's tendency to expand its surveillance capabilities and involve the justice system in the expansion of these tools.

In Argentina, the power to intercept communications and bug them was associated with illegal espionage. The reform of the intelligence system in 2015 dismantled the former intelligence agency Secretariat of Intelligence (SIDE), passing its authority over to the Public Prosecutor's Office. However, due to a dispute with then-Attorney General for the Nation, Alejandra Gils Garbó, the president issued a decree at the end of 2015 transferring that power to the Supreme Court. With that wave of the magic wand, the Court's power was expanded, vesting it with powers of intelligence and investigation that it shouldn't have had. According to their own reports, the Office of Judicial Assistance on Complex Crimes and Organized Crime (Dajudeco) is also responsible for carrying out financial analyses, relational maps, economic profiles and social media tracking, in addition to powers to investigate organized crime and public and private corruption¹³. The Court also incorporated duties of information analysis and centralization and signed contracts with the AFI, the Financial Information Unit (UIF), the Federal Administration of Public Income tax authority (AFIP) and the Ministry of Justice, which granted the Court access to its databases, among other matters.

Unbelievable and legally questionable, this setup consolidated another key aspect of the crisis in the system: the arrangement between the Court and the AFI restored the old system of bugging and authorized the management and direct intervention by the federal judicial structure in intelligence areas and tasks, with direct support from the AFI. The Court having an intelligence structure within its own purview fosters the naturalization of bad habits with very negative consequences for the legality, transparency and legitimacy of judicial investigations. Participation by intelligence areas in criminal investigations runs the risk of bending procedural rules, limiting the capacity for oversight of the parties and accountability in general. Under this setup, the Court ended up involved in the intelligence system crisis¹⁴. These decisions mean the maximum court shares the political program that sustains that, in order to be effective "in the fight against crime and corruption," the Supreme Court itself must become an agency of investigation and intelligence instead of strengthening its function of constitutional oversight and safeguarding of rights.

Recent years have brought a proliferation of phone tapping in criminal cases. Judges and prosecutors in different arenas are increasingly asking for and accepting measures that invade privacy that affect the accused, victims and witnesses. This punitive logic naturalizes the expansion of state intervention with surveillance tools. Both the government and a broad sector of the judiciary claim that phone tapping is necessary to investigate any crime, and they celebrate the increasing use of these practices as an indicator of efficiency. At the same time, so many cases of bugging have been filtered to the media that it has been commonplace to hear private communications broadcast on the media without questioning their origin. For example, in the investigation into the disappearance and death of Santiago Maldonado, the parties in the case discovered in a news article that they were being bugged. The papers even divulged private conversations by Maldonado's brother.

4. Checks on people, not the powers-that-be

As the secrecy of state intelligence and security activities has become the rule, the issue of oversight becomes more urgent: How can people and organizations control and know what information has been compiled on them and whether the state's involvement is legal? The existing administrative, judicial and political channels are incapable of tackling the issue of secrecy and the resistance from agencies to undergo oversight. Their practice – whether based on ideological conviction, complicity or apathy – is a part of or validates the growing opaqueness of the security and intelligence system.

Congress (through the Bicameral Commissions on Security and Oversight of the Intelligence System) and the Judiciary hold powers of oversight over the policies and performance of the security and intelligence agencies, as well as the protection of rights in concrete cases. The Agency for Access to Public Information (AAIP) also exercises relevant functions to fight against the logic of secrecy that continues to prevail, as we have seen, even when regulatory advances have been achieved to provide access to this type of information. For instance, Law 27,275 on Public Information, 25,520 on Intelligence (amended under 27,126) and 25,326 on Personal Data Protection establish rules for defining when information must be public and when it can be declassified and handed over, even if it had been considered confidence or secret. These laws and institutions do not make up a very sophisticated oversight structure, nor do they work adequately.

The Bicameral Commission on Oversight of Intelligence Agencies and Activities barely has any activity. And if it did, it would be secret. It is a nearly inactive political mechanism that also falls within the logic of secrecy and is therefore part of the same tainted system.

Attempts by CELS to obtain information through administrative claims channels failed: answers to our requests for public information access were not satisfactory, nor to our claims filed with the AAIP and its subsidiary Office of Personal Data (bodies tasked with application of the laws on Public Information Access and Personal Data Protection, respectively).Several months after our claim regarding the rejection of information requests about the WTO, the Agency responded that the Ministry of Security had answered all questions clearly, that Foreign Affairs had done so "in a timely and appropriate manner" when, upon judicial notice, it had to show very relevant memos and internal cables, and that there furthermore had not been unjustifiable denial from the AFI, because it had reported its non intervention "in matters related to the accreditation of participants in the WTO World Summit." No statement was made on the AFI's interpretation regarding exemption from the application of the laws on access to information and personal data. But it did add that

This response put an end to the possibility of an administrative claim, without any serious response from any Executive entity as to what information they had used to discredit summit participants as "dangerous."

In his annual report, the IACHR Special Rapporteur on Freedom of Expression mentioned the situation regarding the right to access public information in Argentina when access is denied in the name of "national security."¹⁵ He likewise expressed his concern about the hindrances, making it nearly impossible for people to access information linked to intelligence or national security matters, because such information is considered secret, and pointed out the weaknesses of oversight authorities to uphold international standards. He mentioned the case of the WTO Summit, and reiterated the standards that should prevail in these circumstances.

Just a few days after the publication of this report, the AAIP resolved, in another claim, that the AFI must provide certain information¹⁶. The AFI had understood that the information being requested was secret and had justified it in a resolution, also secret, that it did not present. The AAIP ruled that, although the information requested was secret – based on the laws on National Intelligence and Public Information Access – the AFI had to make public "the information index reserved by the entity." "The entity mandated must bear in mind that, the moment it denies information, it must report the administrative record of which information was denied in the case."

The AAIP's solution is correct in the guarantee of due process in that it requires publication of the list (or index) of documentation that the AFI classifies as secret or confidential and the grounds for denial of access. However, its scope is limited when it comes to breaking the logic of secrecy under which the intelligence and security agencies function. To do this requires more forceful intervention by oversight bodies and the development of better standards on the issue of secrecy and the applicable exceptions, criteria for classification and the process for accessing public information or for requesting declassification. In this resolution, for instance, there continue to be references to categories of security classification in the regulatory decree prior to the 2015 reform. The resolution is also not explicit with respect to the fact that exceptions for reasons of national security should be interpreted in a restrictive manner.

Nor was there an effective judicial response. In all cases and instances, the judges limited their responses to repeating in dogmatic fashion the arguments of denial expressed by the agencies accused and to validating their interpretation of secrecy in absolute deference to the Executive Branch. The judges validated the secrecy of information when we requested information from the AFI on reserve funds, cooperation agreements and bugging. They limited their responses to affirming that this was secret information just by virtue of being in the AFI's possession. This interpretation contradicts constitutional and conventional standards of public information access. Nor did the Executive Office provided relevant information when asked to in judicial instances. Foreign Affairs never released information on the alleged "calls for violent demonstrations," nor specified what office made that assessment.

One of the judges who received a request for information from CELS on the criteria for classification, reserve funds, bugging and information exchange agreements considered that the Bicameral Commission on Oversight was the only legally authorized organ to exercise oversight of the AFI, and that, therefore, was not obligated to guarantee access to intelligence information. He limited his response to repeating the AFI's own interpretation on the legal system of secrecy, without analyzing the request or weighing the rights at stake. He did not develop any argument to justify disregarding the principle of maximum disclosure established under the constitutional standards and the Information Access Act. Nor did he consider the possibility of accessing the information himself and, based on his findings, decide whether it should be public or accessible at least to the petitioners. Thus, the judicial channel for claims was exhausted and confirmed that, at least in this instance, the AFI does not have to show accountability for core issues of its operation. Issues that, furthermore, have been at the heart of public denouncements of illegal use of funds, information trafficking and filtration of bugged conversations. In one of the WTO accreditation cases that reached the Federal Administrative-Contentious Appeals Court, the court rejected the habeas data filed and any possibility of the petitioner gaining access to their personal information; said uncertainty and suspicion of the petitioner thus persists. We will have to wait to find out what rules and standards the Supreme Court will apply. So far, the judicial channels have been ineffective when it comes to obtaining an access order for personal information and oversight of state intelligence activity. In this sense, the fact that part of the surveillance apparatus now depends on the highest court weakens the Court's impartiality.

5. Breaking the opaqueness

This set of policies and practices is part of a vision of State and the ties it must establish with people. The expansion of the security and intelligence apparatus, as well as the rationale of secrecy based on national security have very concrete consequences: they restrict rights and propose a less democratic State.

With these rules, the institutional system operates within broad margins of arbitrariness that are very tough to defend oneself against, and used as the basis for formal and informal practices that push the limits of surveillance and state intelligence. At the same time, they reinforce groups of state and private power associated with these issues with increasing autonomy from the democratic powers and that demand broader functions and more resources.

Public information access claims usually work for other issues in democratic life, but not with these. In good measure, because the state is going about things from an increasingly warlike perspective and one based on the construction of public enemies.

In a democratic state, secrecy cannot prevail over all intelligence activities or over security. Nor can it be sustained indefinitely. In the context of the policy of memory, truth and justice, the jurisprudence of the Supreme Court and lower courts was important when it came to opening some of the state archives and to undoing, partially, the logic of secrecy around state terror. Even with limitations, judicial channels like habeas data and access to information were key tools for the judicial system to set regulatory standards and issue orders to dismantle, partly, an authoritarian state. Now, as we face other kinds of authoritarianism and toughening of the state's response to conflicts and dissidence, messages and standards of opening are also needed. It is essential that we redefine the political-ideological agenda with regard to State intervention that seeks justification in national security and its practices. And too, that we reinforce the institutional spaces for oversight to at least break open a few cracks to shed light on the opaqueness.