'Spy satellite' plan draws fire on Capitol Hill

At a U.S. House of Representatives Homeland Security Committee hearing here, Democratic and Republican politicians alike accused the department of leaving them in the dark about the proposed October 1 launch of its new subset called the National Applications Office (NAO).

According to the department, the new office will be a "clearinghouse" for what it expects to be a broader set of requests--particularly by law enforcement, border security and other domestic homeland security agencies--to tap into devices that have mostly collected data for scientific or military purposes in the past.

The idea for expanded domestic use of satellites grew out of recommendations in fall 2005 by an independent study group appointed by the Director of National Intelligence (DNI) after the September 11 attacks. In May, Homeland Security received official authorization to set up an office designed to meet that aim.

But committee leaders fumed that they didn't hear about those plans until they were leaked during their August recess by The Wall Street Journal. Politicians from both parties questioned whether such a scheme jibes with Americans' privacy and civil rights under federal law and the U.S. Constitution.

The most blistering criticism came from Rep. Jane Harman (D-Calif.), formerly the top Democrat on the House Intelligence Committee. She called for an immediate halt to the program's launch until Homeland Security officials have presented Congress with a satisfactory explanation of the program's legal underpinnings.

"It is very serious business to use a satellite feed for domestic purposes," Harman said. "Not only is it serious right now, but six months from now, the capabilities will evolve further and they will be able to do more and more."

Rep. Pete King (R-N.Y.), the committee's ranking member, said he, too, was concerned that Congress wasn't informed of the program until after the Journal piece appeared. But he nevertheless said he does not see "constitutional issues" with the program based on the briefings he has received so far.

Others, however, questioned whether the plans would hold up to the Fourth Amendment's protections against unreasonable searches and seizures by the government. A few Republicans sought specific guarantees that the program would never use thermal imaging to snoop on people in their homes.

"If you could be very explicit in your rules that that's not what you're doing, I think you resolve a lot of the problems we have here," said Rep. Dan Lungren (R-Calif.). "And the American public then realizes we're not talking about looking into your bathroom, looking into your bedroom, we're talking about (looking at) things that are otherwise visible in closer proximity?"

Homeland Security Chief Privacy Officer Hugo Teufel said such uses would not be permitted unless a warrant was issued and attempted to reassure the committee that "necessary" privacy protections are in place.

Chief Intelligence Officer Charles Allen said the satellites in question cannot "penetrate buildings" or homes, but he acknowledged that thermal imaging has been used in the past to help to spot forest fires or other hot spots and didn't directly rule out other uses. (Rep. Charlie Dent, a Pennsylvania Republican, cited a Virginia court case that ruled using infrared radar to detect heat to apprehend marijuana growers was improper. But the Homeland Security officials assured him they would make a full assessment, considering the Constitution and case law, when deciding whether to grant agencies' requests for the imagery.)

A 'broader customer base'
Allen, who is presiding over the project, also attempted to downplay the extent to which "new" surveillance will be occurring. He said the technique has been used for decades for scientific research and during natural disasters and has also been employed by the Secret Service and FBI for "certain applications." For instance, when an infamous series of sniper attacks swept through the Washington, D.C., area in October 2002, the CIA and FBI were cleared to use images provided by the National Geospatial Intelligence Agency to look for places snipers might hide along highways between Pennsylvania and North Carolina.

The major difference under the new plans will be a "broader customer base" in the non-military sector, such as Homeland Security officials charged with disaster response and border security, and state and local police, he said. But both during the hearing and in an informal meeting with reporters afterward, Allen declined to speculate on the circumstances in which satellite imagery would be provided to police, saying that area would be hashed out over the next year through a working group.

Daniel Sutherland, the department's civil rights and civil liberties officer, did acknowledge his office should have been brought into the process earlier than July, though he said the DNI's civil liberties officers became involved in the project last fall. Sutherland and others also argued the establishment of the National Applications Office is preferable to today's "ad hoc" process for providing imagery to various government clients because it adds an additional layer of bureaucratic privacy review that hasn't previously existed.

Committee Chairman Bennie Thompson (D-Miss.) urged the department to delay the office's launch until Congress is assured the activities won't intrude on Americans' private lives. He repeatedly attacked the department's admitted failure to brief the Homeland Security Committee on its plans, for which Allen apologized and called "an oversight." (Homeland Security did, however, brief the congressional intelligence committees and politicians in charge of appropriating funds to set up the office.)

"There's still significant discomfort on the committee," Thompson said.