On Tuesday, the House Appropriations Committee approved an amendment denying money for the new domestic intelligence operation—cryptically named the “National Applications Office”—until the Homeland Security secretary certifies that any programs undertaken by the center will “comply with all existing laws, including all applicable privacy and civil liberties standards.”
Rep. Jane Harman, a California Democrat who chairs the House Homeland Security Subcommittee on intelligence, told Newsweek that majorities in both the House and Senate intend to block all funding for the domestic intelligence center at least until August, when the Government Accountability Office, an investigative agency that works for Congress, completes a report examining civil-liberties and privacy issues related to the domestic use of picture-taking spy satellites.
Harman, who was the top Democrat on the House Intelligence Committee when Republicans controlled Congress earlier in Bush’s tenure, said she still felt burned by the president’s secret expansion of domestic electronic spying after 9/11. At the time, she and other intel committee leaders were assured that the increased intelligence activity was legal, only to learn later that the basis for the new surveillance was a set of opinions by administration lawyers that are now widely considered to be legally questionable.
Because of the administration’s poor handling of the electronic spying program (mainly conducted by the super-secret National Security Agency, which operates a worldwide web of electronic eavesdropping systems), Harman says she and other members of Congress will be more cautious about accepting civil-liberties assurances from administration officials. “We have to make sure this is not a back door for spying on Americans,” Harman told Newsweek.
Harman said that she had discussed the administration’s plans for expanding domestic use of picture-taking spy satellites—which are supposedly capable of taking very high-resolution photographs of buildings, vehicles and people—with Homeland Security Secretary Michael Chertoff. According to Harman, he promised strict procedures to protect the rights of Americans, including obtaining court authorization for law enforcement-related surveillance operations where appropriate. Despite Chertoff’s assurances, however, Harman said that Congress probably would not fully approve the program until the administration is more explicit about how it would operate.
A congressional aide familiar with the views of Senate Democrats said they share Harman’s concerns. However, this aide, who asked for anonymity when discussing sensitive material, said that the administration is close to providing Capitol Hill with detailed new protocols for protecting civil rights and privacy when conducting such surveillance. A Homeland Security official said that the administration had hoped to begin full operations of the National Applications Office, which would be located at a secret facility somewhere in the Washington, D.C., area, in October. But Harman said that full congressional funding for the new center almost certainly would be held up until after the presidential election in November.
Earlier this week, the Federal Emergency Management Agency, which is supposed to manage federal disaster relief efforts, and the National Geospatial-Intelligence Agency, which directs the operations of picture-taking spy satellites and analyzes their output, issued a statement describing how they were currently working together to help out with flood-relief efforts in the Midwest.
According to the statement, NGA is “providing analysis, unclassified commercial imagery of flooded areas and geospatial intelligence products to FEMA and emergency responders in the affected areas to aid in rescue and recovery efforts.” Intelligence experts note that commercial picture-taking satellites, such as one operated by a company called DigitalGlobe, already make available for public use satellite imagery with a resolution as fine as 18 inches—meaning, said one expert, that the satellite picture can zoom in on a single car.
Classified imaging satellites, operated at NGA’s direction and built by a secretive Pentagon agency called the National Reconnaissance Office, can produce pictures of even greater clarity, though precise details are state secrets. An intelligence official confirmed that information from secret Pentagon satellites is currently being made available to agencies involved in flood-relief efforts. But to protect intelligence secrets, classified spy-satellite pictures are not being provided directly to flood-relief agencies, the official said. Instead, intelligence analysts are using pictures from secret satellites to make unclassified paper maps and to produce unclassified electronic data that can be used both by emergency services and ordinary homeowners. Some of the intelligence community’s flood-relief data can be viewed on an NGA website.
The intelligence official said that domestic agencies, ranging from the FBI to the Agriculture Department, have for years been able to request spy-satellite data. Such information has been used in the past not only to help organize disaster responses (to events such as Hurricane Katrina), but also to help plan security for major public events, ranging from papal visits and presidential inaugurations to sporting championships such as the World Series and Super Bowl. The official said that before intelligence agencies can spy on individual households, they must first consult government lawyers to ensure such activities are legal.
Intelligence and law enforcement experts say that under present laws, criminal investigators or intelligence operatives would probably not need a warrant to conduct surveillance on buildings or suspects from street level—or from above, using a helicopter or airplane. Nor would they need express authority to use commercially available satellite pictures. On the other hand, in a 2001 opinion authored by conservative Justice Antonin Scalia, the U.S. Supreme Court ruled that investigators had inappropriately invaded the privacy of a marijuana grower when they used information collected by an external heat-sensing device to obtain a search warrant for the man’s home.
An intelligence official could not specify whether the new domestic intelligence office would be required to obtain a warrant before conducting particularly close satellite surveillance. A spokesman for NGA said the agency would have no comment on the program. But Russ Knocke, a Homeland Security spokesman, told Newsweek that fears about the program are unfounded. “We’ve repeatedly met with Congress to answer questions about the NAO,” he said. “As we have said, the purpose of the NAO is not to expand existing legal authorities. Rather, it will allow the government to better and more efficiently prioritize the use of scarce resources in support of major disasters, homeland security efforts and perhaps—in the future—law enforcement. We have also been clear that we would brief Congress before moving to support law enforcement. Efforts to further stall the NAO are misguided and keep us from making the best use of overhead imagery for a number of public safety and security missions.”