On August 15, the Wall Street Journal broke the news that America’s senior intelligence authorities were preparing to vastly expand access to classified satellite reconnaissance and other remote sensing data.
Initially, the National Applications Office (NAO), a newly created office within the Department of Homeland Security (DHS), will confine itself to homeland security and traditional civil applications. Officials will be able to request satellite data to enhance border security, defend critical infrastructure and coordinate disaster response. Next year, the department plans to give satellite data to state and local law enforcement agencies.
The Office of the Director of National Intelligence (ODNI) is a major force behind the creation of the NAO. According to the Journal, Director of National Intelligence Michael McConnell officially authorized the project in a May 25 memo to DHS Secretary Michael Chertoff.
When DHS first announced the creation of the NAO for disseminating classified information from America’s spy satellites on August 15, it hadn’t bothered to notify the House Committee on Homeland Security beforehand.
The House Committee on Homeland Security held a hearing on the NAO on September 6. In his opening statement, Committee Chair Bennie Thompson (D‑Miss.) expressed grave doubts about whether safeguards were in place to protect civil rights and privacy.
“There was no briefing, no hearing, and no phone call from anyone on your staff to any member of this Committee of why, how, or when satellite imagery would be shared with police and sheriffs’ officers nationwide,” Thompson admonished DHS Chief of Intelligence Charles Allen in his opening statement.
Several committee members expressed concern that Homeland Security had provided very few concrete details about how the program will operate, or what safeguards will be in place to protect privacy and civil liberties.
The NAO will begin operations on October 1, 2007. The office will serve as a central clearinghouse for satellite reconnaissance requests from civil, homeland security, and law enforcement officials, essentially a one-stop-shop for civilian agencies that want information from America’s network of spy satellites.
A Homeland Security fact sheet describes the NAO as a “federal advocate” for civil intelligence consumers. The office won’t just process requests, it will educate its new “customers” about what satellites can do for them and even agitate for better funding for their preferred types of satellite.
“[The NAO] will serve as an advocate in Intelligence Community discussions about future technology investments that might benefit the civil applications, homeland security, and law enforcement domains,” Allen told the committee.
The NAO is intended to build on the work of the Civil Applications Committee within the U.S. Geological Survey, which currently reviews civilian requests for classified satellite imagery.
The architects of the NAO appear to have approached privacy and civil liberties as something of an afterthought. Planning for the NAO began in the spring of 2005, but internal privacy and civil liberties officials weren’t even consulted until this July.
The legal basis of the program is equally vague. Chairman Thompson noted in his opening statement that DHS’s Office of General Counsel declined his written request for an attorney to testify about the legal framework for the NAO’s activities. DHS’s top lawyer, Gus Coldebella, wrote Thompson, saying that he did not feel that it would be “useful” for him to participate as a witness.
“I frankly don’t need the Acting General Counsel’s advice on determining who will be a useful witness and who will not,” Thompson told the committee, “I had a reason and a purpose for asking Mr. Coldebella to testify, and his absence creates new questions that I will seek to have answered.”
The DHS maintains that the creation of the NAO is just a formalization of a process that has been in effect for almost as long as satellites have existed. Allen told the House committee that defense and intelligence agencies have been sharing satellite information with civil authorities on an ad hoc basis for 30 years.
A few civilian agencies have had limited access to spy satellite data, primarily for environmental and scientific purposes. For example, data from spy satellites have been used by civil agencies to monitor fires, flooding and volcanic activity. But the prospect of domestic law enforcement getting classified intelligence gathered by the military to enforce American laws in the United States is unprecedented.
The creation of the NAO is part of a larger trend in national security policy: a concerted effort to blur the bright line between espionage and law enforcement. McConnell has made information sharing one of the defining issues of his tenure as head of the ODNI.
After 9⁄11, it became clear that the various agencies tasked with securing the United States were not communicating effectively. Over the last six years, there has been a major push for increased communication and collaboration between the military, the intelligence community, and the police.
While sharing and communication sound good in the abstract, a rapprochement between spies and cops could be dangerous. It’s not just bureaucratic inertia that keeps your local sheriff from accessing classified satellite reconnaissance data for her upcoming stakeout.
Policymakers have deliberately limited the cooperation between intelligence and law enforcement because the two classes operate under entirely different sets of ground rules.
Quite simply, spies don’t have to ask permission to eavesdrop on foreign targets. They have incredibly broad latitude under American law to gather information about our enemies and allies abroad. But Executive Order 12333, signed by Ronald Reagan on December 4, 1981, bars the intelligence community from most forms of eavesdropping at home.
Domestic law enforcement operates under entirely different constraints. The Constitution guarantees Americans the right to be free from unreasonable searches and seizures. So if, say, the NYPD wants to bug a suspected drug dealer’s phone, they have to convince a judge that they have probable cause.
It would defeat the purpose of our current safeguards if domestic law enforcement authorities could simply ask the CIA for intelligence it was legally barred from collecting on their own, or vice versa.
At the hearing, Rep. Jane Harman (D‑Calif.) asked DHS officials whether sharing defense intelligence with local law enforcement might also violate the Posse Comitatus Act of 1848, a federal law that prohibits using the military for domestic policing without congressional authorization. Harman didn’t get a definitive answer because the DHS hadn’t sent a practicing attorney.
Perhaps most disturbing, the DHS and the DNI want to police themselves. Witnesses repeatedly reassured the committee that internal DHS privacy and civil liberties officers would oversee the NAO, and that they in turn would be supervised a joint executive body controlled by the DHS and the DNI. These two agencies are subject to Congressional oversight, but so far DHS’s attitude towards congressional oversight of the NAO has not been confidence inspiring.
The creation of the NAO marks a major departure from previous policy with regards to America’s secret spy satellite data. The current system is working well for true civil applications. But the implications of the NAO’s law enforcement mission are new and troubling.