TURNING SPY SATELLITES ON THE
HOMELAND: THE PRIVACY AND CIVIL
LIBERTIES IMPLICATIONS OF THE NATIONAL APPLICATIONS OFFICE
=======================================================================
FULL HEARING
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 6, 2007
__________
Serial No. 110-68
__________
Printed for the use of the Committee on Homeland Security
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4
COMMITTEE ON HOMELAND SECURITY
BENNIE G. THOMPSON, Mississippi, Chairman
LORETTA SANCHEZ, California, PETER T. KING, New York
EDWARD J. MARKEY, Massachusetts LAMAR SMITH, Texas
NORMAN D. DICKS, Washington CHRISTOPHER SHAYS, Connecticut
JANE HARMAN, California MARK E. SOUDER, Indiana
PETER A. DeFAZIO, Oregon TOM DAVIS, Virginia
NITA M. LOWEY, New York DANIEL E. LUNGREN, California
ELEANOR HOLMES NORTON, District of MIKE ROGERS, Alabama
Columbia BOBBY JINDAL, Louisiana
ZOE LOFGREN, California DAVID G. REICHERT, Washington
SHEILA JACKSON-LEE, Texas MICHAEL T. McCAUL, Texas
DONNA M. CHRISTENSEN, U.S. Virgin CHARLES W. DENT, Pennsylvania
Islands GINNY BROWN-WAITE, Florida
BOB ETHERIDGE, North Carolina MARSHA BLACKBURN, Tennessee
JAMES R. LANGEVIN, Rhode Island GUS M. BILIRAKIS, Florida
HENRY CUELLAR, Texas DAVID DAVIS, Tennessee
CHRISTOPHER P. CARNEY, Pennsylvania
YVETTE D. CLARKE, New York
AL GREEN, Texas
ED PERLMUTTER, Colorado
VACANCY
Jessica Herrera-Flanigan, Staff Director & General Counsel
Rosaline Cohen, Chief Counsel
Michael Twinchek, Chief Clerk
Robert O'Connor, Minority Staff Director
(ii)
C O N T E N T S
----------
Page
STATEMENTS
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security:
Oral Statement................................................. 1
Prepared Statement............................................. 2
The Honorable Peter T. King, a Representative in Congress From
the State of New York, and Ranking Member, Committee on
Homeland Security.............................................. 3
The Honorable Paul C. Broun, a Representative in Congress From
the State of Georgia........................................... 35
The Honorable Christopher P. Carney, a Representative in Congress
From the State of Pennsylvania................................. 37
The Honorable Charles W. Dent, a Representative in Congress From
the State of Pennsylvania...................................... 24
The Honorable Bob Etheridge, a Representative in Congress From
the State of North Carolina.................................... 34
The Honorable Al Green, a Representative in Congress From the
State of Texas................................................. 26
The Honorable Jane Harman, a Representative in Congress From the
State of California............................................ 22
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas........................................ 40
The Honorable Daniel E. Lungren, a Representative in Congress
From the State of California................................... 28
The Honorable Ed Perlmutter, a Representative in Congress From
the State of Colorado.......................................... 30
The Honorable David G. Reichert, a Representative in Congress
From the State of Washington................................... 31
WITNESSES
Panel I
Mr. Charles Allen, Chief Intelligence Officer, Office of
Intelligence and Analysis, U.S. Department of Homeland
Security:
Oral Statement................................................. 5
Prepared Statement............................................. 7
Mr. Daniel W. Sutherland, Officer, Civil Rights and Civil
Liberties, U.S. Department of Homeland Security:
Oral Statement................................................. 9
Prepared Statement............................................. 11
Mr. Hugo Teufel, III, Chief Privacy Officer, U.S. Department of
Homeland Security:
Oral Statement................................................. 14
Prepared Statement............................................. 15
Panel II
Ms. Lisa Graves, Deputy Director, Center for National security
Studies:
Oral Statement................................................. 49
Prepared Statement............................................. 51
Mr. Barry Steinhardt, Director, ACLU Program on Technology and
Liberty, American Civil Liberties Union:
Oral Statement................................................. 43
Prepared Statement............................................. 45
TURNING SPY SATELLITES ON THE
HOMELAND: THE PRIVACY AND CIVIL
LIBERTIES IMPLICATIONS OF THE
NATIONAL APPLICATIONS OFFICE
----------
Thursday, September 6, 2007
U.S. House of Representatives,
Committee on Homeland Security,
Washington, DC.
The committee met, pursuant to call, at 10:00 a.m., in Room
311, Cannon House Office Building, Hon. Bennie G. Thompson
[chairman of the committee] presiding.
Present: Representatives Thompson, Harman, Jackson Lee,
Christensen, Etheridge, Cuellar, Carney, Green, Perlmutter,
King, Lungren, Reichert, Dent, and Broun.
Chairman Thompson. The Committee on Homeland Security will
come to order.
The committee is meeting today to receive testimony on
``Turning Spy Satellites on the Homeland: The Privacy and Civil
Liberties Implication of the National Applications Office.''
The Department chose Congress' August recess as a time to
announce, with great fanfare, the creation of a new National
Applications Office, referred to as the NAO, to facilitate the
use of spy satellites to protect the homeland.
For the first time in our Nation's history, the Department
plans to provide satellite imagery to State and local law
enforcement officers to help them secure their communities.
While I am all for information sharing with our first
preventers, it has to happen the right way. Whether the
National Applications Office is the right way remains to be
seen.
What was perhaps most disturbing about the Department's
announcement, moreover, is that it wasn't an announcement at
all. This authorizing committee did not learn about the
National Applications Office from you, Mr. Allen, but from the
Wall Street Journal. There was no briefing, no hearing, no
phone call from anyone on your staff to inform any member of
this committee of why, how, or when satellite imagery would be
shared with police and sheriffs' offices nationwide.
Apparently, we weren't the only ones left in the dark.
Despite my repeated requests that the Department take privacy
and civil liberties seriously, the privacy officer and civil
rights and civil liberties officer were not brought into the
National Applications Office development process until this
spring, more than a year and a half after the National
Applications Office started coming together. This is
unacceptable. The rigorous privacy and civil liberties
protection must be baked into from the beginning, and your
Department's experts on these topics were shut out.
Furthermore, the National Applications Office will be up
and running in less than 4 weeks. How the working group
responsible for developing the rules for State and local use of
spy satellite imagery will complete their work in this time is
beyond me. Indeed, they only recently began their work.
We are here today to help to ensure that privacy and civil
liberties at the Department do not remain the afterthoughts
that they have apparently been.
I want to know from our Department witnesses the scope of
the program, its legal basis, and specifically how
constitutional protections will be incorporated. I note,
however, we will be doing it with one hand tied behind our
back.
Last week, we invited the Department's Office of General
Counsel to send an attorney to explain all this. What we got
instead was a letter from the Department's Acting General
Counsel stating, I do not feel that it would be useful for me
to participate as a witness.
We frankly don't need the Acting General Counsel's advice
on determining who will be a useful witness and who will not. I
had a reason and a purpose for asking him to testify, and his
absence creates a new question that I will seek to have
answered later.
I firmly agree that America must use the tools at its
disposal to prevent another terrorist attack on our soil, but
we must do so within the confines of the law. Sharing spy
satellite information with our State and local law enforcement
simply goes to far more noncontroversial applications. As Kate
Martin of the Center for National Security Studies has aptly
stated, this potentially gives rise to a Big Brother in the
Sky. Like Ms. Martin, I am not convinced that the potential
impact of all this has been fully considered or that adequate
protections are in place.
I look forward to hearing from our witnesses on how the
Department plans to address these concerns, and from our panel
of civil rights and civil liberty experts on the consequences
of failure to get it right. We welcome our panel of witnesses.
[The statement of Mr. Thompson follows:]
Prepared Statement of the Honorable Bennie G. Thompson, Chairman,
Committee on Homeland Security
The Department chose Congress' August recess as the time to
announce--with great fanfare--the creation of a new National
Applications Office (NAO) to facilitate the use of spy satellites to
protect the homeland.
For the first time in our nation's history, the Department plans to
provide satellite imagery to state and local law enforcement officers
to help them secure their communities.
While I'm all for information sharing with our first preventers, it
has to happen the right way. Whether the NAO is the `right way' remains
to be seen. What was perhaps most disturbing about the Department's
`announcement', moreover, is that it wasn't an announcement at all.
This authorizing Committee did not learn about the NAO from you,
Mr. Allen, but from the Wall Street Journal. There was no briefing, no
hearing, and no phone call from anyone on your staff to inform any
Member of this Committee of why, how, or when satellite imagery would
be shared with police and sheriffs' officers nationwide.
Apparently we weren't the only ones left in the dark.
Despite my repeated requests that the Department take privacy and
civil liberties seriously, the Privacy Officer and Civil Rights and
Civil Liberties Officer were not brought into the NAO development
process until this spring--more than a year and a half after the NAO
started coming together.
This is unacceptable. Rigorous privacy and civil liberties
protections must be `baked in' from the beginning, and your
Department's experts on these topics were shut out.
Furthermore, the NAO will be up and running in less than four
weeks. How the working group responsible for developing the rules for
state and local use of spy satellite imagery will complete their work
in time is beyond me. Indeed, they only recently began their work!
We're here today to help and to ensure that privacy and civil
liberties at the Department do not remain the afterthought that they
have apparently been. I want to know from our Department witnesses the
scope of the program, its legal basis, and specifically how
Constitutional protections will be incorporated.
I note, however, that we'll be doing so with one hand tied behind
our back. Last week, we invited the Department's Office of General
Counsel to send an attorney to explain all this.
What we got instead is a letter from Gus Coldebella, the
Department's Acting General Counsel, stating, `I do not feel that it
would be useful for me 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. 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.
I firmly agree that America must use the tools at its disposal to
prevent another terrorist attack on our soil--but we must do so within
the confines of the law. Sharing spy satellite information with state
and local law enforcement simply goes far beyond more non-controversial
applications. As Kate Martin of the Center for National Security
Studies has so aptly stated, it potentially gives rise to a `Big
Brother in the Sky.' Like Ms. Martin, I am not convinced that the
potential impact of all this has been fully considered or that adequate
protections are in place.
I look forward to hearing from our witnesses on how the Department
plans to address these concerns and from our panel of civil rights and
civil liberties experts on the consequences of failure to `get it
right.'
Mr. Thompson. I now yield to the ranking member for his
statement.
Mr. King. Thank you, Chairman Thompson. I want to welcome
the witnesses. I look forward to their testimony.
I also share Chairman Thompson's concern and frustration
that this committee was not made aware of this program at an
early date, early time. Not for any reasons of turf or ego, but
because if we are to be an effective oversight committee, if
there is to be an effective relationship between the committee
and the Department, it is essential that we be brought in at
the start, not find out about it from press reports after the
fact.
I have great regard for Mr. Allen. I am confident this will
not be repeated in the future. I just want to emphasize that I
fully agree with the chairman on this that this was not handled
properly. And, again, we are not just talking about questions
of technicalities or procedure, we are talking about the
effectiveness and the legality of the program itself.
Now, having said that, from the information we have gotten
over the past several weeks, including a briefing this morning,
I at this stage do not see constitutional issues. Having said
that, there is still no reason why--and the reason I say that,
I don't see a fourth amendment issue here. But, again, as the
testimony comes out today and as we hear especially from the
second panel of witnesses, there may be issues raised that
cause concern.
And also, it is my understanding that for the most part, if
not entirely, what is going to be done under this program in a
comprehensive, coordinated, cohesive way is what has been done
in an ad hoc way in a variety of ways over the past 30 years.
So this certainly appears to be a step in the right direction,
and it is unfortunate we have what may well be a needless
controversy because we were not brought in early on.
I also must say to Chairman Thompson, though, that I am
disappointed that we could not accommodate the requests of the
DNI to have the Deputy Director of National Intelligence for
Collection and also the DNI Civil Liberties Protection Officer
testifying with the governmental witnesses. And, again, this is
not just a matter of protocol, but I just thought it would add,
if we are concerned about civil liberties, if we are concerned
about civil rights, if we are concerned about what protections
are in place, I believe they should have been allowed to
testify at the government panel. And by putting them and
offering them to testify at the second panel in an adversarial
role, to me, defeats the purpose of what we are trying to do
here as a committee. So, again, Mr. Chairman, I am disappointed
in your decision not to give them the opportunity to testify at
the government panel.
Having said that, I am sure this panel will give us the
much needed information we need. I also look forward to the
testimony of members on the second panel.
And I think it is important to keep in mind that we are
talking about here confronting an enemy which is attempting to
destroy us. It is essential that we do have effective
surveillance. It is essential that we use all the necessary
tools. From what I have learned so far, I believe sufficient
protections are in place. But, again, we could avoid a lot of
this issue if we had been brought in early on. And certainly
not just Chairman Thompson and myself, but certainly people
such as Chairperson Harman who has such a long experience in
this and is Chair of the relevant committee, and as Chairman
Conyers of the oversight committee. This would be a lot further
along I think standing together in a much more bipartisan way
if it had been done that way from the start.
So with that, I yield back the balance of my time the
balance of my time. I thank the chairman for calling this
hearing, and I look forward to the testimony.
Chairman Thompson. Thank you very much, Mr. King. Let me
indicate that we invited DNI to participate on the second
panel. They refused, as you know. But we are also opened to
holding additional hearings on this matter going forward.
We thought it important, since Mr. Allen's shop is
responsible for this particular program, that they be given
exclusive panel presentation for this hearing, and for that
reason we made that decision. But other members of the
committee are reminded that, under the committee rules, opening
statements may be submitted for the record.
I welcome the first panel of witnesses.
Our first witness, Charlie Allen, is the Department's Chief
Intelligence Officer. Mr. Allen leads the Department's
intelligence work through the Office of Intelligence and
Analysis and focuses on improving the analysis and sharing of
terrorist threat information.
Our second witness, Mr. Dan Sutherland, is the Department's
Officer for Civil Rights and Civil Liberties. Mr. Sutherland
provides advice to the Secretary and senior department officers
on a full range of civil rights and civil liberties issues.
Our third witness, Hugo Teufel, is the Department's Privacy
Officer. Mr. Teufel is primarily responsible for privacy policy
at the Department. That includes assuring that the technologies
used by the Department to protect the United States sustain and
do not erode privacy protections related to the use,
collection, and disclosure of personal information.
Without objection, the witnesses' full statement will be
inserted in the record. I now ask each witness to summarize his
statement for 5 minutes, beginning with Mr. Allen.
STATEMENT OF CHARLES ALLEN, CHIEF INTELLIGENCE OFFICER, OFFICE
OF INTELLIGENCE AND ANALYSIS, DEPARTMENT OF HOMELAND SECURITY
Mr. Allen. Chairman Thompson, Ranking Member King, members
of the committee, thank you for the opportunity to speak about
the National Applications Office.
I would like to point out that the National Technical
Means, such as overhead imagery from satellites, have been used
for decades lawfully and appropriately to support a variety of
domestic uses by the U.S. Government's scientific, security,
and law enforcement agencies. The National Applications Office,
when operational, will facilitate the use of remote sensing
capabilities to support a variety of customers, many of whom
have previously relied on ad hoc processes to access these
intelligence capabilities.
The National Applications Office will provide not only a
well ordered transparent process for its customers, but also
ensure that full protection of civil rights, civil liberties
and privacy are applied to the use of those remote sensing
capabilities. In doing so, it will build on the outstanding
work of the Civil Applications Committee, known as the CAC,
which was established in 1975 to advance the use of the
capabilities of the intelligence community for civil,
nondefense, national security uses.
My staff and I have worked closely with the CAC to ensure
that the standup of the National Applications Office, with the
broadened mandate to include homeland security and law
enforcement communities, will still support civil and
scientific need for geospatial imagery at a robust level. Let
me give you some background on the standup of the NAO, the
National Applications Office.
In April 2005, the Director of National Intelligence, the
DNI, and the Director of the U.S. Geological Survey
commissioned an independent study group to review the current
and future role of the CAC and to study whether the
intelligence community was employing National Technical Means
effectively for homeland security as well as law enforcement
purposes. The study group, led by Mr. Keith Hall, former
Director of the National Reconnaissance Office, concluded that,
unlike civil users, many homeland security and law enforcement
agencies lacked a Federal advocate for the use of National
Technical Means. The study group's bottom line was, and I
quote, ``an urgent need for action, because opportunities to
better protect the Nation are being missed.''
They recommended unanimously that the DNI establish a new
program to employ effectively the intelligence community's
national technical capabilities not only for civil purposes but
also for homeland security and law enforcement.
The study group also recommended that the program be
established within the Department of Homeland Security. In
response to the study group's recommendation, the Director of
National Intelligence designated the Secretary of Homeland
Security as executive agent in late spring 2007 to establish
the program in the form of a National Applications Office. A
National Applications Executive Committee, cochaired by the DNI
and the DHS, will be established to provide senior interagency
oversight and direction.
In the past, with the CAC's assistance, scientists have
used historical and current satellite imagery to study issues,
such as environmental damage, land use management, and for
similar purposes research. Similarly, some homeland security
and law enforcement users also in the past routinely accessed
imagery and other technical intelligence directly from the
intelligence community, especially in response to national
disasters such as hurricanes and forest fires.
The Department of Homeland Security/U.S. Secret Service has
used overhead imagery to identify areas of vulnerability based
on topography and to build large maps to support its security
planning.
DHS and Federal law enforcement agencies have used imagery
to identify potential vulnerabilities of facilities used for
high-profile events such as the Super Bowl.
These are all valid, useful, lawful uses of National
Technical Means that enhance our ability to protect our Nation,
whether the threats are manmade or naturally occurring.
The objective of the NAO is to bring all these requirements
for imagery support under one oversight body where they are not
only prioritized but reviewed to determine whether the
requirements are appropriate and lawful.
In short, the NAO's mission is to serve the right customers
with the right product at the right time. On a day-to-day
basis, the NAO will work with civil applications, homeland
security, and, on a case-by-base basis, law enforcement
customers to articulate their requirements to determine how our
satellite imagery systems may be able to satisfy them, and
submit any validator request to the National Geospatial
Intelligence Agency for collection tasking.
The National Applications Office will also be able to
access through the National Geospatial Intelligence Agency
commercially available imagery to meet many of the customer
needs.
Allow me to state categorically that the National
Applications Office will have no relationship or interaction
with either the FISA or the terrorist surveillance programs.
Now, let me talk about privacy and civil liberties. I am
very pleased today to have with me my colleagues, Dan
Sutherland and Hugo Teufel, who will speak in more detail about
how NAO protects privacy and civil liberties. Since its
inception, we have considered privacy and civil liberties to be
at the forefront of the planning of the office.
The independent study group in 2005 articulated the need to
protect privacy and civil liberties as a guiding principle. In
my view, the NAO will strengthen privacy and civil liberties.
The NAO will be subject to direct oversight by privacy and
civil liberties offices within both the Department of Homeland
Security and the Office of the Director of National
Intelligence. In addition, the National Applications Office
will have its own legal adviser. At the executive level, the
DNI's Civil Liberties Protection Officer and its Office of
General Counsel, as well as DHS's Chief Privacy Officer and
Officer for Civil Rights and Civil Liberties, will serve as
advisers to the National Applications Executive Committee,
which conducts the oversight and guidance. As evidenced today,
the Congress will provide additional oversight of the NAO.
Together, these oversight mechanisms will ensure that the
NAO will protect privacy, civil rights, and civil liberties
under the highest standards while serving the strength and the
security of this Nation. I assure you and the American people
that the appropriate use of National Technical Means
capabilities will make the Nation safer while maintaining
strong protections of privacy and civil liberties. The National
Applications Office will continue longstanding practices of
employing these capabilities with full regard for the privacy
and civil liberties of all Americans.
The rules for lawful and appropriate use for such
capabilities have not changed. Under all conditions, especially
in our increasingly uncertain homeland security environment in
which we face a sustained and heightened threat, it is
essential that our government use all of its capabilities to
ensure the safety and well-being of its citizens. The NAO
brings a critical and sensitive national capability to bear. It
does so with the full respect for law and the rights our
citizens cherish. I request your support for this vital
national program.
Thank you very much.
[The statement of Mr. Allen follows:]
Prepared Statement of the Honorable charles E. Allen, Chief
Intelligence, Office of Intelligence and Analysis,
Chairman Thompson, Ranking Member King, Members of the Committee,
thank you for the opportunity to speak with you about the National
Applications Office (NAO). National Technical Means (NTM)--such as
overhead imagery from satellites--have been used for decades, lawfully
and appropriately, to support a variety of domestic uses by the US
government's scientific, law enforcement and security agencies. The
NAO, when operational, will facilitate the use of remote sensing
capabilities to support a wide variety of customers, many of whom
previously have relied on ad hoc processes to access these intelligence
capabilities. The NAO will provide not only a well-ordered, transparent
process for its customers but also will ensure that full protection of
civil rights, civil liberties and privacy are applied to the use of
these remote sensing capabilities.
Once initially operational this fall, the NAO will facilitate the
use of NTM for civil applications and homeland security purposes. A
third domain, law enforcement, will be a part of the NAO, but will not
be operational on October 1 to allow additional time to closely examine
any unique aspects of law enforcement requirements in light of privacy
and civil liberties. In doing so, it will build on the outstanding work
of the Civil Applications Committee, known as the ``CAC,'' which was
established in 1975 to advance the use of the capabilities of the
Intelligence Community for civil, non-defense uses. My staff and I have
worked closely with the CAC to ensure that the stand-up of the NAO--
with a broadened mandate to include the homeland security and law
enforcement communities--will still support civil and scientific need
for geospatial imagery, at an even more robust level.
Background of the National Applications Office
From its inception, the CAC has helped civil and scientific users
understand how NTM can assist their missions and how to gain access to
information normally in the hands of the intelligence agencies. With
the CAC's assistance, for example, scientists have used historical and
current satellite imagery to study issues such as environmental damage,
land use management, and for similar purposes of research. The CAC also
has used imagery to study glaciers and examine the effects of global
climate change.
Similarly, some homeland security and law enforcement users in the
past routinely accessed imagery and other technical intelligence
directly from the Intelligence Community, especially in response to
natural disasters such as hurricanes and forest fires. The Department
of Homeland Security (DHS), for example, used overhead imagery in 2005
to examine areas damaged by Hurricanes Katrina and Rita to determine
areas most in need of assistance. The DHS US Secret Service has used
overhead imagery to identify areas of vulnerability based on topography
and to build large maps to support its security planning. DHS and
Federal law enforcement agencies have used imagery to identify
potential vulnerabilities of facilities used for high-profile events
such as the Super Bowl. These are all valid, lawful uses of NTM that
enhance our ability to protect our nation--whether the threats are man-
made or naturally occurring. The objective of the NAO is to bring all
of these requirements for imagery support under one oversight body,
where they are not only prioritized but also reviewed to determine
whether requirements are appropriate and lawful. Allow me to state
categorically, the NAO will have no relationship or interaction with
either the FISA or the Terrorist Surveillance Programs.
Let me provide background on the decision to establish the NAO. The
Director of National Intelligence (DNI) and the Director of the U.S.
Geological Survey commissioned an independent study group in early 2005
to review the current and future role of the CAC and to study whether
the Intelligence Community was employing NTM capabilities effectively
for homeland security and law enforcement purposes. The study group,
led by Mr. Keith Hall, formerly Director of the National Reconnaissance
Office, concluded that, unlike civil users, many homeland security and
law enforcement agencies lacked a federal advocate for the use of NTM.
In addition, the study group determined that many agencies, especially
at the state and local level, did not know what remote sensing
capabilities the Intelligence Community possessed that might be useful
to them or how to request NTM in support of their missions. The study
group's bottom line was that there was ``an urgent need for action
because opportunities to better protect the nation are being missed.''
It recommended unanimously that the DNI establish a new program to
employ effectively the Intelligence Community's NTM capabilities not
only for civil purposes, but also for homeland security and law
enforcement uses as well.
In response to the study group's recommendations, the DNI
designated the Secretary of Homeland Security as Executive Agent in
late spring 2007 to establish the new program in the form of the NAO.
As it becomes initially operational this fall, the NAO will work with
the Intelligence Community to improve access to NTM for domestic users
in the homeland security and civil applications communities at all
levels of government, who, heretofore, have not had a structured
process to request such intelligence. DHS, as executive agent, will
operate the NAO. A National Applications Executive Committee, co-
chaired by the DNI and DHS, will be established to provide senior
interagency oversight and guidance. ``This interagency forum will
ensure the NAO adequately serves those government customers who have
lawful and appropriate requirements for geospatial intelligence, to
include classified satellite imagery and derived products.
Day to Day Activities
On a day-to-day basis, the NAO will work with civil applications,
homeland security, and in the future on a case-by-case basis, law
enforcement customers, to articulate their requirements, determine how
our satellite imagery systems may be able to satisfy them, and submit
any validated requests to the National Geospatial Intelligence Agency
(NGA) for review, approval and collection tasking. The NAO also will be
able to access, through NGA, commercially available imagery to meet
many customer needs.
The NAO will be advised and supported by three working groups
representing customer domains: civil applications, homeland security,
and law enforcement. It should be noted that the law enforcement
working group will be stood up over the next year, after closely
examining any unique aspects of law enforcement requirements in light
of privacy and civil liberties. All three domain working groups will
include representatives from the DHS Privacy Office and the DHS Office
for Civil Rights and Civil Liberties as well as an attorney assigned
directly to the NAO.
In addition to its day-to-day business of helping its customers
gain access to NTM, the NAO will help customers take advantage of
educational opportunities to learn about the Intelligence Community
remote sensing capabilities, including their benefits and limitations.
The NAO also 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.
Privacy and Civil Liberties
Since its inception, we have considered privacy and civil liberties
to be at the forefront of the planning for the NAO. The independent
study group in 2005 clearly articulated the need to protect privacy and
civil liberties as a guiding principle in its findings. In my view, the
NAO--when operational--will strengthen privacy and civil liberties. The
NAO will be subject to direct oversight by privacy and civil liberties
offices within both the Department of Homeland Security and the Office
of the Director of National Intelligence. In addition, the NAO will
have it own legal advisor. At the executive level, the DNI's Civil
Liberties Protection Officer and its Office of General Counsel, as well
as DHS's Chief Privacy Officer and Officer for Civil Rights and Civil
Liberties Officer, will serve as advisors to the National Applications
Executive Committee, which will provide executive oversight and
guidance for the NAO. The President's Privacy and Civil Liberties
Oversight Board will have oversight of the use of NTM for combating
terrorism.
In addition, all requests from the NAO for the use of classified
satellite imagery will continue to abide by current NGA processes and
be vetted by NGA attorneys and policy staff to determine legal
appropriateness before collection tasking occurs. This review provides
a supplemental level of oversight in addition to the strong protections
already embedded in the NAO. In this way, both DHS and NGA will ensure
adherence to applicable law and regulation, and intelligence oversight
rules. DHS and NGA are bound by intelligence oversight rules, explained
in Executive Order 12333, that protect the privacy and civil liberties
of US persons. Further, DHS and NGA are required to report any
violations of law or other questionable activities to the Intelligence
Oversight Board of the President's Foreign Intelligence Advisory Board
including violations of E.O.333. Finally, both DHS and NGA are
subject to oversight by the House and Senate intelligence committees.
Conclusion
I assure you and the American people that the appropriate use of
these NTM capabilities will make the nation safer while maintaining the
privacy and civil liberties of Americans. The NAO will continue long-
standing practices of employing these capabilities with full regard and
protection for the privacy and civil liberties of Americans. The rules
for lawful and appropriate use of such capabilities have not changed.
Under all conditions, and especially in our increasingly uncertain
homeland security environment in which we face a sustained and
heightened threat, it is essential that our government use all its
capabilities to assure the safety and well-being of its citizens. The
NAO brings a critical and sensitive national capability to bear. It
does so with full respect for the law and the rights our citizens
cherish. I request your support for this vital national program.
Chairman Thompson. Thank you, Mr. Allen, for your
testimony.
I now recognize Mr. Sutherland to summarize his statement
for 5 minutes.
STATEMENT OF DANIEL W. SUTHERLAND, OFFICER, CIVIL RIGHTS AND
CIVIL LIBERTIES, DEPARTMENT OF HOMELAND SECURITY
Mr. Sutherland. Thank you, Chairman Thompson, ranking
Member King, and distinguished members of the committee. Thank
you for giving me the opportunity to speak to you today about
the civil rights and civil liberties implications of the new
National Applications Office.
We believe that the work of the new NAO will reach its
highest level of effectiveness when it is carried out in a way
that respects America's rich constitutional history. So I want
to begin by assuring you that our office, the Office for Civil
Rights and Civil Liberties, is working very closely with
Assistant Secretary Allen and his staff and our colleagues in
the Privacy Office to assure that the new NAO meets that
highest level of effectiveness. In addition, we look forward to
continuing to work with the Director of National Intelligence's
Civil Liberties Protection Officer and the Privacy and Civil
Liberties Oversight Board as well as this committee on this
issues. There are a complex range of people who are working on
these issues, and we have a good working relationship that we
look forward to building on.
Just briefly, let me touch on the mission of our office
generally. In accordance with 6 USC, Section 345, the mission
of the Office for Civil Rights and Civil Liberties is to assist
the dedicated men and women of the Department of Homeland
Security to secure our country while preserving our freedoms
and our way of life.
We have worked on issues, almost all the issues that have
faced the homeland security effort from the Hurricane Katrina
recovery, to the operation of watch list immigration policy, to
the training of our workforce. Of course, we collaborate
extensively with our colleagues in the Privacy Office as well.
So, just a general layout of our office.
Let me talk about how it relates to the National
Applications Office and our work here. I want to highlight
quickly four reasons why we think that the protection of civil
liberties should become a core responsibility, a part of the
basic infrastructure of the NAO.
The first reason is because the people who lead the program
have made it clear that they are committed to protecting civil
liberties. You just heard Assistant Secretary Allen's
testimony. But, in addition, our office was written into the
planning for the NAO and our important role was made clear in
the NAO's concept of operations, and in recent weeks we have
been working very closely with the NAO, the larger Intelligence
and Analysis Directorate within which it operates, and a
variety of these other agencies. And we have established a
solid working relationship with the NGA where these
applications will come from.
So the first reason that we believe that there is a
protection of civil liberties is that it is being built into
the infrastructure as we begin to operate the program.
The second reason why we are optimistic is that we have a
solid track record of working with our colleagues in
Intelligence and Analysis on projects such as this. For
example, our offices have worked together on many initiatives
relating to radicalization and engagement with American Arab,
Muslim, Sikh, and South Asian communities, an extremism that
our country is facing. We described some of that work in
previous meetings with staff members here and in testimony in
front of this committee.
We are also heavily involved in the Department's
information sharing environment efforts which are led by INA,
and this year we have begun working on fusion centers and
helping in terms of training and other work that INA is doing
in terms of fusion centers.
So there are numerous other projects that I could specify.
Those are just a few. We have an increasing and deep working
relationship with our colleagues in Intelligence and Analysis,
and so we believe that that is a strong track record we can
build on.
Third, the NAO is creating important procedural safeguards
to protect civil liberties. Just as Felix Frankfurter once
wrote, the history of liberty has largely been the history of
the observance of procedural safeguards. In other words, if
parameters are established, if ground rules are laid out, the
chances that violations will occur are much less likely, and
that if those violations occur, they will be limited in scope
and effect.
So, Charlie has already referenced several of the
safeguards. Let me just mention them again.
First, we are working with the NAO to implement the Con Ops
for the office. The Con Ops integrates in the protection the
role of the Civil Rights and Civil Liberties Office as well as
the Privacy Office.
Secondly, we are working on the standard operating
procedures, and will make recommendations related to the extent
and process for our review of any NAO requests. We have already
begun working with and are assured that we are going to be
involved in a variety of different legal and policy working
groups that are associated with this.
And, finally, we will serve as formal advisers to the
National Applications Executive Committee which will be
established in the upcoming weeks.
So all of these procedural steps will help ensure that
privacy and civil liberties issues are fully considered in the
ongoing work of the NAO.
So fourth and finally, maybe most importantly, we will
provide training on these issues. We have already been asked to
provide training on basic civil liberties protections to the
staff of the NAO in the upcoming weeks, and we expect to
accomplish that initial training here in this month. And we
believe that our training efforts should extend beyond DHS
employees in the sense of customer education on civil liberties
as one means of warding off potential misuse.
I want to thank you for inviting me to share our thoughts
on the National Applications Office, and I look forward to
working with this committee to provide oversight of this
important program. Thank you.
[The statement of Mr. Sutherland follows:]
Prepared Statement Daniel W. Sutherland
Introduction
Chairman Thompson, Ranking Member King and distinguished Members of
this Committee: Thank you for providing me the opportunity to testify
today on the National Applications Office (NAO) and the civil rights
and civil liberties implications of its work. The work undertaken by
the new NAO within our Department will be an asset to the country's
homeland security effort, and NAO will reach its highest level of
success when accomplished in ways that respect America's rich
Constitutional history. I want to begin by assuring the Committee that
the Office for Civil Rights and Civil Liberties is engaged with
Assistant Secretary Allen and his staff and our colleagues in the
Privacy Office to ensure that the NAO reaches the highest level of
effectiveness. In addition, I look forward to continuing to work with
our colleagues in the Office of the Director of National Intelligence's
Civil Liberties Protection Officer, the Privacy and Civil Liberties
Oversight Board and this Committee to provide strong oversight of the
NAO.
The Mission of the Office for Civil Rights and Civil Liberties
In accordance with 6 U.S.C. Sec. 345, the mission of the Office for
Civil Rights and Civil Liberties is to assist the dedicated men and
women of the Department of Homeland Security (DHS) to secure our
country while preserving our freedoms and our way of life. We assist
our colleagues in four ways:
We provide proactive advice on a wide range of issues,
helping the Department to shape policy in ways that are mindful
of civil rights and civil liberties;
We investigate and facilitate the resolution of
complaints filed by the public regarding Departmental policies
or actions taken by Departmental personnel;
We provide leadership to the Department's equal
employment opportunity programs, seeking to make this
Department the model Federal agency; and,
We serve as an information and communications channel
with the public regarding these issues.
In essence, we provide advice to our colleagues on issues at the
intersection of homeland security and civil rights and civil liberties.
We therefore have the opportunity to work closely with every DHS
component, both in Washington, D.C., and in many field offices across
the country. Our Office has been involved in nearly all aspects of the
critical issues facing the homeland security effort--from the Hurricane
Katrina recovery, to the operation of watch lists, to immigration
policy, to the training of our workforce.
Because our Office is small, we realize that we must, to use a
sports analogy, ``punch above our weight.'' One way we have
accomplished this is by creating the ``Civil Liberties Institute,'' a
program to provide high-quality training on a wide range of topics.
Through the ``Civil Liberties Institute,'' we have developed:
a training video that emphasizes elements of the
National Detention Standards;
a multi-hour instructional video on how to screen
people with disabilities at airports;
educational materials on how to screen those who wear
religious head coverings;
an intensive training DVD for DHS personnel who
interact with Arab Americans, Muslim Americans, and people from
the broader Arab and Muslim world; and,
``Guidance Regarding the Use of Race for Law
Enforcement Officers,'' a tutorial on the Department of
Justice's Guidance and the DHS policy.
These materials are available to DHS law enforcement employees in
DVD, CD-ROM, or via on-line web-based training formats.
Of course, we collaborate extensively with our colleagues in the
Privacy Office. We work closely with colleagues from the Office of the
Director of National Intelligence (DNI), the Privacy and Civil
Liberties Oversight Board (PCLOB), and others across the government.
The work of the Office for Civil Rights and Civil Liberties has
been supported by other DHS elements because we provide constructive
advice that allows the men and women of the Department to fulfill their
mission at the highest level of effectiveness. Our work has also been
welcomed by colleagues outside of government, as demonstrated by our
frequent collaborations with leading civil rights, civil liberties,
immigration, and community organizations. Our Office plays a unique
role within DHS, and, we hope, a valuable one, and we will continue to
assist our colleagues to tackle complex issues in innovative and
constructive ways.
The Office for Civil Rights and Civil Liberties' Role in the
National Applications Office
Having laid out the role of our Office, let me address the specific
topic of the National Applications Office. I would like to highlight
four reasons why the protection of civil liberties will become a core
responsibility--part of the basic infrastructure--of the National
Applications Office.
First, the people who lead the program have made it clear that they
are committed to protecting civil liberties. The Office for Civil
Rights and Civil Liberties was written into the planning for the NAO
and our important role is made clear in the NAO Concept of Operations
(CONOPS). In recent weeks, we have been working very closely with the
NAO, the DHS Office of Intelligence and Analysis (I&A) within which the
NAO functions, the DHS Privacy Office, the DNI, the PCLOB, and the
National Geospatial-Intelligence Agency (NGA). The Office for Civil
Rights and Civil Liberties has established a solid working relationship
with our colleagues in each of these organizations. The commitment to
establishing safeguards to protect, and indeed enhance, our civil
liberties has been front and center of all of these discussions. We
believe that a great foundation has been laid for working together over
the upcoming weeks, months and years.
Second, we have a solid track record of working with our colleagues
in I&A on complex projects such as this. Our offices have worked
together on many initiatives related to extremism and radicalization.
Assistant Secretary Allen and his colleagues at I&A are great
supporters of our work to engage with the American Arab, Muslim, Sikh
and South Asian communities, the fruits of which we have described in
prior meetings with your staffs and in testimony before this Committee.
We are heavily involved in the Department's Information Sharing
Environment efforts led by I&A, and we are also taking a leadership
role with respect to government-wide efforts lead by the Program
Manager for the Information Sharing Environment at DNI. This year we
have begun to partner with I&A to train personnel and develop sound
civil rights and civil liberties policies and procedures for State and
local fusion centers. There are numerous other projects for which our
offices consult each other on a regular basis. This strong track record
reassures us that we will be in a good position to advise the NAO for
the long term.
Third, the NAO is creating important procedural safeguards to
protect civil liberties. Justice Felix Frankfurter once wrote, ``The
history of liberty has largely been the history of the observance of
procedural safeguards.'' \1\ That is, if parameters are established, if
ground rules are laid out, the chances that violations will occur are
much less likely and are much more likely to be limited in scope and
effect. There are several significant safeguards that are being built
into the NAO's infrastructure. First, we are working with NAO to
implement the CONOPS for the office. The CONOPS includes a prominent
role for our Office and the Privacy Office to provide support and
guidance to the NAO, and will allow us to be embedded into the work of
the NAO. Similarly, we will review the Standard Operating Procedures
(SOP) and make recommendations related to the extent and process for
our review of NAO requests for NGA Products and Services. We have
already been assured that we will be part of the Policy and Legal
Working Group, co-chaired by DNI and DHS, which we and the Privacy
Office will participate in along with all relevant NAO sub-working
groups. In addition, together with the Privacy Office and DNI's Civil
Liberties Protection Officer, we will serve as formal advisors to the
National Applications Executive Committee, which will be established in
the upcoming weeks. All of these procedural steps will help ensure that
privacy and civil liberties issues are fully considered in the on-going
work of the NAO.
---------------------------------------------------------------------------
\1\ McNabb v. United States, 318 U.S. 332, 347 (1943).
---------------------------------------------------------------------------
Fourth and finally, we will provide training on these issues. We
and the Privacy Office have already been asked to lead a training
session on civil liberties and privacy protections to the new staff of
the NAO. We expect that this training, which is anticipated to be
scheduled for later this month, will only be the first of many such
efforts. We believe that our training efforts should extend beyond DHS
employees. For example, we will lead an effort for ``customer
education'' on civil liberties as one means of warding off potential
misuse.
Civil Liberties and the Domestic Use of Geospatial Imagery and Derived
Products and Services
As we undertake our work, we will assist the NAO effort by keeping
a watchful eye on several key potential civil liberties issues. We will
carefully watch:
The expansion of customers and increased use of
geospatial imagery and derived products and services to ensure
that the increased volume does not lead to mistakes. As the NAO
customer base increases, it will likely receive many more new
project requirements, potentially posing an increased risk that
improper requests will be approved in error, with a concurrent
increased risk to civil liberties. We will help our colleagues
at NAO to ensure that quantity does not result in sacrifices of
quality.
NGA provides a legal and policy review of all Federal
requests for domestic geospatial intelligence (GEOINT). NGA has
a long-established process to review domestic requests to
ensure compliance with the law and Intelligence Oversight
rules. That process employs the Proper Use Memorandum (PUM). A
PUM is a memorandum between the requesting agency and NGA
outlining the parameters of permissible requests. A PUM
includes the requesting agency's authorized mission permitting
use of such information, a description of the intended use of
the domestic imagery, who will exploit the domestic imagery,
who will receive the domestic imagery and derived products,
storage and protection of the imagery, and certification by an
appropriate official of the lawfulness and validity of the
request. We will work with the NAO to ensure that the NAO's-
sponsored PUMs submitted to NGA contain the appropriate
parameters and authorities. We will also work with NAO to
ensure that requests received and information provided fit
within the contours of these PUMs.
The NAO will review all State and local law
enforcement requests for the use of NGA products and services.
NAO will forward their vetted requests to NGA for legal and
policy review and final approval. Domestic requests for NGA
products and services will only be approved if they comply with
applicable legal requirements, including, but not limited to,
Executive Order 12333, and would not result in an unreasonable
search under the Fourth Amendment. Our Office will monitor
proposed efforts by law enforcement users involving novel uses
of geospatial imagery and derived products and services or
those which approach the limits of existing civil liberties
standards in this area. We will address those issues in the
planning phase and as they arise in the future.
As geospatial imagery and derived products and
services are added to other data to form products for
dissemination throughout the information sharing environment,
civil liberties and civil rights concerns may arise. As these
products are developed, we anticipate that there may be
potential concerns related to access to those products,
retention of images or data, and the reliability of the data
and use of data. We will address those issues in the planning
phase and as they arise in the future.
Conclusion
The Office for Civil Rights and Civil Liberties will work with the
NAO to establish a firm and certain foundation that provides strong
adherence to civil rights and civil liberties. We will closely monitor
and address the areas I have mentioned and other issues that may arise.
Building upon our success in civil rights and civil liberties
compliance and training, and our track record of close cooperation with
DHS components, we will work with the DHS Privacy Office, I&A, the
Civil Liberties Protection Officer at DNI and the Privacy and Civil
Liberties Oversight Board to protect and preserve civil liberties as
NAO begins operations to help the government ensure the safety and
well-being of our citizens.
I thank you for inviting me to share our thoughts on the National
Applications Office today, and I look forward to working with this
Committee to provide oversight of this important program.
Chairman Thompson. Thank you, Mr. Sutherland, for your
testimony.
I now recognize Mr. Teufel to summarize his statement for 5
minutes.
STATEMENT OF HUGO TEUFEL, CHIEF PRIVACY OFFICER, DEPARTMENT OF
HOMELAND SECURITY
Mr. Teufel. Thank you very much, Chairman Thompson, Ranking
Member King, members of the committee, Mr. Perlmutter from my
home State of Colorado.
I want to thank you for the opportunity to discuss the
Privacy Office's efforts to protect privacy within the National
Applications Office of the Department of Homeland Security, and
I will be brief in my remarks.
I want to assure the committee that the Privacy Office is
engaged with the Assistant Secretary and his staff, and our
colleagues in the Office of Civil Rights and Civil Liberties
and with the Office of the Director of National Intelligence's
Civil Liberties Protection Office to ensure that the NAO will
operate transparently and in full compliance with all statutory
and policy requirements, including privacy.
As the NAO develops, we will continue to identify privacy
risks and fashion protections to mitigate or eliminate those
risks. The NAO prioritizes the protection of privacy and civil
liberties. All activities of the NAO fall under existing legal
authorities, including Executive Order 12333 and the Privacy
Act.
I want to stress, as the program stands today, there has
been no collection, use, or maintenance of records about
individuals as covered under the Privacy Act. Moreover, the
Privacy Impact Assessment, PIA, of the NAO undertaken by my
office and Mr. Allen's staff identified that the necessary
safeguards were in place on the processes of the NAO providing
appropriate privacy protections. Of course, we will continue to
work with the NAO to see that NAO continues to establish and
maintain privacy protections throughout the development and
implementation of this new effort, and we will be vigilant in
our oversight responsibilities to ensure continued compliance
with privacy law and Federal policies regarding the collection,
use, maintenance, and dissemination of records.
Two other things I want to add. First is, the Civil
Applications Committee is not something that was new to me. I
served as the Department of the Interior's Associate Solicitor
for General Law from June of 2001, July of 2001, until January
of 2004. And as one of a handful of attorneys within the
Solicitor's Office with SCI access, the CAC was one of my
clients.
Other than the use of National Technical Means for map
making and environmental uses, there was an ad hoc approach to
the use of NTM, with NGA attorney and programmatic oversight,
but not much else. So I can tell you that with the movement of
the CAC and these responsibilities over to the NAO, there is
far greater and layered oversight than existed previously.
Two, I want to stress to you, since I became the privacy
officer at the Department, my office has increased focus on
intelligence and the intelligence community. We have been
working with INA and our colleagues over at CRCL since the
beginning on intelligence issues. And, I want to note that as a
matter of policy, not as a matter of law because Section 208 of
the E-Government Act exempts the intelligence community, we
notwithstanding that exemption as a matter of policy since the
beginning of the Department, have as a matter of policy that we
will conduct privacy impact assessments on activities of
intelligence and analysis, and we did so in this case.
Additionally, throughout my office everyone involved in any
way with INA or the intelligence communities is undergoing
intelligence training on law and policy. I, myself, have been
through the Army JAG School's intelligence law course at
Charlottesville and, in completion of my master's program at
the Naval War College, am currently enrolled in an intelligence
and homeland security course.
So we take this very seriously, and we want to better
understand the intelligence community so that we can do a
better job of overseeing what it is that Intelligence and
Analysis does generally and with respect to NAO.
With that, I am concluded. Thank you very much.
[The statement of Mr. Teufel follows:]
Prepared Statement of Hugo Teufel, III
Introduction
Chairman Thompson, Ranking Member King, and Members of the
Committee, I thank you for the opportunity to discuss the Privacy
Office's efforts to protect privacy within the National Applications
Office (NAO) of the Department of Homeland Security (DHS).
I want to begin by assuring the Committee that the Privacy Office
is engaged with Assistant Secretary Allen and his staff, our colleagues
in the Office for Civil Rights and Civil Liberties, and with the Office
of the Director of National Intelligence's (ODNI) Civil Liberties
Protection Office to ensure the NAO will operate transparently and in
full compliance with all statutory and policy requirements, including
privacy. As the NAO develops, we will continue to identify privacy
risks and fashion protections to mitigate or eliminate those risks. The
NAO prioritizes the protection of privacy and civil liberties. All
activities of the NAO fall under existing legal authorities, including
Executive Order 12333 and the Privacy Act. I want to stress, as the
program stands today, there has been no collection, use or maintenance
of records about individuals as covered under the Privacy Act.
Moreover, the Privacy Impact Assessment (PIA) of the NAO undertaken by
my office and Mr. Allen's staff identified that the necessary
safeguards where in place on the processes of the NAO providing
appropriate privacy protections. Of course, we will continue to work
with the NAO to see NAO continues to establish and maintain privacy
protections throughout the development and implementation of this new
effort, and we will be vigilant in our oversight responsibilities to
ensure continued compliance with privacy law and Federal policies
regarding the collection, use, maintenance, and dissemination of
records.
The Privacy Office Interaction with Intelligence and Analysis
The Privacy Office believes it is never too early for a component
or program to engage our office. Programs operate effectively and
privacy interests are best served when privacy protections are
considered in the earliest stages of program or system development. We
call our efforts to embed privacy into Departmental programs in the
earliest stages ``operationalizing privacy.'' Frequent privacy
training--at the time of hire and annually thereafter--active
involvement in the technology investment review process, and issuance
of our Privacy Technology Implementation Guide are just a few examples
of the tools the Privacy Office uses to encourage operationalizing
privacy within the Department. The Government Accountability Office
(GAO) acknowledged our gains in this important goal during its recent
review of our office. Still, in an organization as large as DHS, one of
our biggest challenges is keeping abreast of individual programs in
their very earliest moments of conception. We rely very heavily on
components to seize upon the lessons of our outreach and notify us of
their future plans, even if the contemplated use of PII is remote.
My staff became part of the NAO's Policy and Legal Working Group in
November 2006. The purpose of this working group was, and is, to advise
the Director of the NAO and the implementation planning team on issues
related to the formation and anticipated operation of this new
Departmental initiative. The Privacy Office's role in the group is to
ensure strict compliance with all applicable privacy law and policies.
The most significant result of this initial, but limited,
interaction was the issuance of the NAO Concept of Operations (CONOPS).
The CONOPS commits the NAO staff to conduct their authorized functions
effectively while ensuring that their activities affecting U.S. Persons
are conducted in a manner that protects privacy and constitutional
rights. The CONOPS further commits the Privacy Office, along with the
Office for Civil Rights and Civil Liberties, to provide support and
guidance to the NAO, and recommend steps to reconcile the need to use
domestic information with the keystone requirement of protecting the
privacy and civil liberties of U.S. persons. DHS will also assure any
future updates to the NAO CONOPS are reviewed by the Privacy Office in
accordance with Privacy Office guidance. The governance structure calls
for the DHS' Director of Operations Coordination to review the program
annually, including its compliance with privacy requirements, and
includes our offices and our colleagues at the ODNI Civil Liberties
Protection Office as advisors to the National Applications Executive
Committee.
The Privacy Office became more involved with NAO during the
iterative PIA process. I&A and the Privacy Office worked together for
several months to draft a PIA cataloging and documenting both potential
privacy risks and the steps the Department will take to mitigate these
risks.
The NAO Privacy Impact Assessment
The E-Government Act of 2002 requires agencies to conduct a PIA
when developing or procuring IT systems or projects that collect,
maintain, or disseminate information in an identifiable form or about
members of the public. The Department has pioneered the use of PIAs
beyond what the E-Government Act requires in two ways which are
relevant to our work with the NAO.
First, the Privacy Office recognized that privacy can be impacted
by offices, such as the NAO, policies, and rules of the Department, in
addition to information technology. Therefore, as a matter of policy
the Privacy Office conducts PIAs to examine these offices, policies,
and rules, as well, even though it is not required to under the E-
Government Act. These PIAs examine the application of the Fair
Information Practice Principles (FIPPs) to the policy or, in this case,
the office. The eight FIPPs are rooted in the tenets of the Privacy Act
and govern the appropriate use of personally identifiable information
(PII) at the Department.\1\ They are:
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\1\ The Department's PIA Guidance defines PII as ``any information
that permits the identity of an individual to be directly or indirectly
inferred, including any information which is linked or linkable to that
individual regardless of whether the individual is a U.S. citizen,
lawful permanent resident, visitor to the U.S., or employee or
contractor to the Department.'' Section 208 of the E-Gov Act requires
agencies to conduct a PIA for systems which collect, maintain, or
disseminate information in an identifiable form, which is defined as
``any representation of information that permits the identity of an
individual to whom the information applies to be reasonably inferred by
either direct or indirect means.'' (P.L. 107-347)
---------------------------------------------------------------------------
1. Transparency: DHS should be transparent and provide notice
to the individual regarding its collection, use, dissemination,
and maintenance of PII. Technologies or systems using PII must
be described in a SORN and PIA, as appropriate. There should be
no system whose existence and purpose is a secret.
2. Individual Participation: DHS should involve the individual
in the process of using PII. DHS should, to the extent
practical, seek individual consent for the collection, use,
dissemination, and maintenance of PII and should provide
mechanisms for appropriate access, correction, and redress
regarding DHS's use of PII.
3. Purpose Specification: DHS should specifically articulate
the authority which permits the collection of PII and
specifically articulate the purpose or purposes for which the
PII is intended to be used and shared.
4. Data Minimization: DHS should only collect PII that is
directly relevant and necessary to accomplish the specified
purpose(s) and only retain PII for as long as is necessary to
fulfill the specified purpose(s). PII should be disposed of in
accordance with DHS records disposition schedules as approved
by the National Archives and Records Administration (NARA).
5. Use Limitation: DHS should use PII solely for the purpose(s)
specified in the notice. Sharing PII outside the Department is
limited to purposes compatible with the purpose for which the
PII was collected.
6. Data Quality and Integrity: DHS should, to the extent
practical, ensure that PII is accurate, relevant, timely, and
complete, within the context of each use of the PII.
7. Security: DHS should protect PII (in all forms) through
appropriate security safeguards against risks such as loss,
unauthorized access or use, destruction, modification, or
unintended or inappropriate disclosure.
8. Accountability and Auditing: DHS should be accountable for
complying with these principles, providing training to all
employees and contractors who use PII, and should audit the
actual use of PII to demonstrate compliance with these
principles and all applicable privacy protection requirements.
Second, as a matter of policy, the Privacy Office conducts PIAs on
national security systems, which are exempted from the requirement
under Title II of the E-Government Act (Section 202(i)); although,
consistent with the need to protect the processes associated with
national security, the Privacy Office refrains from publishing these
PIAs on our public facing website, www.dhs.gov/privacy.
This broad use of the PIA beyond the strict requirements of the E-
Government Act is consistent with the Privacy Officer's authority under
Section 222 of the Homeland Security Act of 2002 to assure that the use
of technologies sustain, and do not erode, privacy protections relating
to the use, collection, and disclosure of personal information. We have
found that PIAs are an invaluable tool for programs to understand how
their use of information impacts privacy. In addition, PIAs enhance the
confidence the public has in the steps DHS takes to protect privacy.
Thus, I was pleased to see GAO report that our office had made
significant progress in both the number and quality of PIAs issued by
the office.
On June 15, 2007, the Department issued a PIA for the NAO. I&A
shared it with various Congressional Committees, and I know this
Committee has now seen it as well. The document is For Official Use
Only and, therefore, was not made public--and I am limited in what I
can say about it here. Nonetheless, the PIA examined the application of
the FIPPs to the NAO as it is presently planned. At this time, privacy
concerns are nominal because the NAO does not presently anticipate
routinely using or maintaining PII. Should this change, all notice,
comment and oversight requirements imposed by the Privacy Act, the
Privacy Office, and, I'll add, the DHS Office for Civil Rights and
Civil Liberties, will be strictly followed. This PIA, like every other
issued by the Department, will be updated as often as is required. In
fact, we anticipate issuing a new version of the PIA soon incorporating
additional views; when the revision is complete, we will of course
share it with this Committee.
Finally, I want to note that in order to improve our ability to
conduct privacy oversight for I&A, Privacy Office staff, including the
Chief Privacy Officer, are undergoing training on intelligence law and
the intelligence community, to better understand that community's
mission and legal constraints. The Senate Select Committee to Study
Governmental Operations with Respect to Intelligence Activities, the
``Church Committee,'' and the report of the Rockefeller Commission, are
all required reading in our office. We are mindful of the abuses of the
past and we are determined that those abuses not be repeated at our
Department.
The Privacy Office and Office for Civil Rights and Civil Liberties and
ODNI's Civil Liberties Protection Office
I am particularly pleased to be appearing today with the Officer
for Civil Rights and Civil Liberties, Dan Sutherland. His office and
mine share a statutory obligation to work together to ensure programs,
policies and procedures involving civil rights, civil liberties, and
privacy considerations are addressed in an integrated and comprehensive
manner.
Both Mr. Sutherland and I have strived to give maximum effect to
this statutory obligation. In addition to our frequent consultation,
our staffs have instituted bi-weekly calls to ensure the close level of
cooperation contemplated by the Homeland Security Act. The NAO is
another opportunity for our offices to work together and coordinate our
policies relating to privacy and civil rights and civil liberties.
Our office has developed a very close working relationship, as
well, with our colleagues at the ODNI's Civil Liberties and Protection
Office, which is charged with ensuring appropriate protections for
privacy and civil liberties are incorporated in the policies and
procedures of elements of the intelligence community within the
National Intelligence Program, including DHS. I am pleased to be
appearing today with Mr. Joel, who heads the ODNI's Civil Liberties
Protection Office.
Our combined efforts on training and oversight will be critical to
the success of the NAO.
Conclusion
The Privacy Office is committed to ensuring the NAO will be a
success, both in terms of forwarding the critical missions of the
Department and the United States Government to ensure the safety and
well-being of our citizens, and equally in preserving the privacy
protections the American public has a right to expect. I believe the
NAO will not only preserve, but strengthen, these privacy protections.
This will require close cooperation between my office, the Office
for Civil Rights and Civil Liberties, Assistant Secretary Allen and his
staff, the Privacy and Civil Liberties Oversight Board, and the Office
of the Director of National Intelligence. Together we will provide
guidance, train staff and program participants, facilitate outreach
with the privacy and civil liberties advocacy community, and exercise
our oversight role zealously. We will continue to monitor the evolution
and operation of the NAO to ensure the use of PII is done so in
accordance with all applicable laws and policies. We will update the
PIA as necessary, and will, of course, be happy to report our findings
back to this Committee at any time.
I thank the Committee for this opportunity to testify about the NAO
and its privacy compliance documentation, as well as the Privacy
Office's role in moving the program forward successfully. I look
forward to answering your questions.
Chairman Thompson. Thank you very much. I would like to
thank the witnesses for their testimony. I remind each member
that he or she will have 5 minutes to question the panel. I
will now recognize myself for questions.
Mr. Allen, one of the concerns that I think you heard
earlier this morning is that, at present, we have not or you
have not developed the written policies for the implementation
of this new program. And you further indicated that if that was
not the case by October 1, you would in fact delay the rollout
of this program. Is that still your opinion?
Mr. Allen. Mr. Chairman, what I indicated is that we have
been working on issues and the concept of operations. That has
been finished and submitted, I believe, to Capitol Hill,
including your office. We are working on guidelines, we are
working on standard operating procedures.
Chairman Thompson. Excuse me. I am not certain if we have
that.
Mr. Allen. If you don't, I was informed that you do, but I
will verify that and get back to you, Mr. Chairman. But we do
have a concept of operations. We are finishing guidelines and
standard operating procedures, and looking at how to staff and
stand up the organization. We think we can certainly meet the
requirement that you all indicated that you wanted to have, a
greater framework to understand the legal basis, which I think
Mr. Teufel just spoke to at least in part, because we are not
asking for new authorities or new forms of legislation, because
this operates under the National Security Act of 1947, the
Executive Order 12333, the Homeland Security Act of 2002, and,
as Mr. Teufel said, under the Privacy Act we meet all those
standards. We will give you that framework and the guidelines
that we have developed, Mr. Chairman.
Chairman Thompson. Thank you. I want you to understand that
if the authorizing committee asked you today for the written
protocol by which you will operate this program, we do not have
it in a form that you can present it to us. Am I correct?
Mr. Allen. I think we can provide that to you in short
order, because we do have the concept of operations, we do have
the privacy impact assessment. We operate, as you know, and we
do have guidelines and SOPs. We can provide you with
significant data.
Chairman Thompson. I think it is important for you to
provide this committee with all of the information that you
propose to operate this program going forward. Do you have a
timetable under which we can expect receipt of this
information?
Mr. Allen. We will provide you the concept of operations
today. I thought your committee had it; and, if it doesn't, I
apologize.
Chairman Thompson. Now, just to talk about a few items
associated with this rollout. Is it your understanding that the
Privacy and Civil Liberties Oversight Board participated in the
development of this National Applications Office?
Mr. Allen. The Privacy and Civil Liberties Officer----
Chairman Thompson. Not office. The board.
Mr. Allen. The White House board. It is aware and has been
informed of this particular National Applications Office and
the fact it is to be stood up. Yes.
Chairman Thompson. Well, if you will provide this committee
with any communication associated with that board's
notification and participation in the development of this
project, in addition to the earlier requests, then I will be
satisfied. There is some question as to whether they really
know, Mr. Allen, and I want you to understand that.
Mr. Allen. Thank you. We will take that for the record and
get back to you.
Chairman Thompson. Mr. Sutherland, since this program is
about to be rolled out October 1, can you provide this
committee with when you first participated in the review?
Mr. Sutherland. Yes, sir. Our office was drawn in in late
July.
Chairman Thompson. Of this year?
Mr. Sutherland. Of this year, yes, sir. Our colleagues at
the DNI, the Civil Liberties Protection Office, were drawn in
in the fall of last year. Our colleagues at the Privacy Office
I know can speak to this more, but were more clearly involved
as the spring came along, and we were drawn in the last few
weeks.
Chairman Thompson. Is your involvement at this point--just
explain your involvement.
Mr. Sutherland. Yes, sir. We have been extremely integrally
involved over the past few weeks. We are working on helping to
develop the standard operating procedures for the NAO. We are
beginning to work on some of the legal and policy working
groups that are going to be stood up as the executive committee
begins. And so we have been working, getting briefings on the
intricacies of the program both at NGA and at NAO, so we have a
full understanding of the program and how it works.
Chairman Thompson. Thank you very much. I think my concern
is that, for the most part, the program was developed and
presented to you before you were involved in it.
Mr. Sutherland. I am sorry, sir. Again?
Chairman Thompson. If the program was introduced in August
and you first saw it in July, for all intents and purposes it
was complete.
Mr. Sutherland. If I could use a football analogy. We were
brought in in the pre-season. The regular season is going to
kick off October 1. We do believe, and Assistant Secretary
Allen has said, we should have been brought in earlier. But we
do have colleagues in the privacy and civil liberties community
who were working on these issues earlier. But there is no doubt
we should have been brought in earlier, but we are at a stage
now where we feel comfortable we are able to make a large
impact and really benefit the NAO with our expertise.
Chairman Thompson. Thank you very much.
I yield to the ranking member for questions.
Mr. King. Thank you, Mr. Chairman.
First of all, thank you for your testimony. It is my
understanding that the conversation between you, Mr. Allen, and
the concept of operations and privacy impact assessment were
given to staff of the committee on August 17. I think this is
the document we are talking about. But, in any event, I have it
here.
I have listened carefully to your testimony and I would
like to know, is there anything that is going to be done under
this program which has not been done ad hoc up until now or
could have been done ad hoc up until now?
Mr. Allen. Congressman King, there is nothing new in the
sense we have done this in the past for homeland security when
we have had hurricanes, disasters. The Civil Applications
Committee is well established, and it still has to go through
the whole review of NGA attorneys before any of its requests
are acted upon.
As far as law enforcement, we haven't begun that. We are
going to stand up a working group between ourselves, DHS
attorneys, DNI, and Department of Justice.
So there is nothing new. It will be a broader customer
base, I believe, once we are able to tell the nondefense
community more about what might be available to support them
for homeland security affairs. But the science applications
will continue, and we hope to make them stronger than they are
today.
Mr. King. Now, has this been shared with law enforcement
before?
Mr. Allen. There is a Legal Law Enforcement Working Group
that is standing up of Justice, the Director of National
Intelligence, and the Department of Homeland Security. They are
aware of it and they are looking at applications. As you know,
we have on an ad hoc basis the National geospatial Intelligence
Agency under the egress of both the DCI and now the DNI and has
supported the Secret Service, supported the FBI in certain
applications. But those have been for national security events
where geospatial imagery can be of assistance in helping
protect major events.
Mr. King. My understanding was, when we had the D.C.
snipers 5 years ago, wasn't this program used then?
Mr. Allen. Yes. Congressman King, I was requested by the
Director of Central Intelligence, George Tenet at the time,
acting on a request from Director Mueller, to image the
interchanges between Pennsylvania and North Carolina, because
of the killings that could occur and had occurred along the
interstate, because the Bureau wanted the National Geospatial
Intelligence Agency to outline the sites, places where snipers
might hide. It was used, and Director Mueller, as I recall, was
very gratified.
Mr. King. I am trying to determine whether constitutional
issues may arise here. Is there any thermal imaging involved in
this program?
Mr. Allen. As far as----
Mr. King. As far as being able to penetrate residences.
Mr. Allen. No. We will not penetrate residences. This is
not going to penetrate buildings. There can be some infrared
collection of space to look at forest fires, hot spots. We have
used this to support the National Fire Service for decades.
This was used long before the proposal was made to establish a
National Applications Office.
Mr. King. If I could ask then, Mr. Sutherland and Mr.
Teufel, both of you, is there any Supreme Court case on point
involving a fourth amendment issue which would pertain to
anything which would come under this program?
Mr. Sutherland. We are----
Mr. Teufel. Coordinating.
Mr. Sutherland. --coordinating our thoughts on the Supreme
Court litigation. There is Supreme Court litigation that sets
the parameters under which we will evaluate the program. There
was the Supreme Court case a few years ago on thermal imaging
that you are talking about. But, to date, we have seen nothing
that implicates that litigation. I mean, that litigation and
those decisions lay the contours, the parameters under which we
will evaluate the specific requests that are made.
Mr. Teufel. There is the CAC's decision about the language
with reasonable expectations of privacy, and there is well
established case law on when law enforcement can fly over in
air space and take pictures. But understand that, while we are
both lawyers, we are not practicing as lawyers currently in our
positions.
Mr. King. I guess I am getting at, there has been talk
about spies in the sky and spying and snooping and everything
else. But I am just wondering if there is anything under this
program which has not been done for at least 30 years under
both Democrat and Republican administrations, for instance,
whether it is in organizations, whether it is hurricanes, which
as I see it is what you are going to continue doing but now it
is going to be more consolidated and more coordinated.
Mr. Allen. Yes, Congressman King. We use it for border
security. We are trying to determine how best to employ its
capabilities. For border security, for seaport security,
critical infrastructure it is very helpful, and for national
security events it has been used rather prolifically in the
past, as well as natural disasters, including fighting fires
and earthquakes. And, of course, it was used immediately after
September 11. Within a half an hour, using a sensitive
capability, we could see the extent of damage in New York City.
Mr. King. Thank you, Mr. Chairman.
Chairman Thompson. Thank you very much.
Ms. Harman has agreed to start our questioning after we
recess and come back. The plans will be, after the two votes,
about 5 minutes after the last vote, to reconvene. So we will
recess the committee.
[Recess.]
Chairman Thompson. We would like to reconvene the recessed
hearing. The next questioner will be Ms. Harman from California
for 5 minutes.
Ms. Harman. Thank you, Mr. Chairman.
Welcome to our witnesses. I have worked with each of you
over some period of time and I appreciate your service, and I
surely am grateful you are in the positions you have.
Having said that, I am about to deliver as sober a message
as I know how to deliver. Number one, I represent satellite
central. My district in California is where most of our defense
satellites are designed and built. I know a lot about
satellites. I spent 8 years serving on the House Intelligence
Committee, 4 years as Ranking Member, and I know their
capabilities and I know that their capabilities are evolving
and it is very serious business to use satellite feed for
domestic purposes. And it not only serious right now, but 6
months from now the capabilities will evolve further, and we
will be able to do more and more. And obviously I am not going
to discuss that in a public setting. That is my first point.
My second point is, Charlie Allen, you said this is nothing
new, it is just a broader customer base. Well, that is new, a
broader customer base. Requests from customers to use materials
that are ever more sensitive, for purposes that we may not even
understand yet, is new. That is not old. That is new. And
sharing information with this broader customer base provides
all kinds of issues about privacy and civil liberties of
Americans that weren't there before and that is new. That is my
second point.
My third point is I have listened up and, as best as I can
tell, our two privacy and civil liberties witnesses were not
cut into this until this year, July of this year. This program
may have been shared with others last year. I know that the
origins of it were 2005. And I am surely not saying that it is
a bad idea to have a program, but privacy and civil liberties
concerns apparently were an afterthought. And I understand that
we have in this committee some kind of a privacy document which
those who have read it--and I am not one of those--think is not
an adequate document. So that is my third point.
My fourth point is that just telling us that Executive
Order 12333, the 1947 National Security Act, the Homeland
Security Act of 2002, and the Privacy Act cover this program is
not telling me anything. I am a trained lawyer, as some of you
are, and some of our other members are, and I want to see the
legal document that puts the clear, bright legal framework
around this program and is speaking for me. I do not think it
should proceed. I oppose the idea that it would become
operational until we have that framework and have a chance to
review it. I am not talking about delaying unnecessarily. But I
am saying that the right way to do this is for Congress--which
passes the laws of the United States and protects the
Constitution, to review carefully the legal framework for what
I consider to be a new program before it is rolled out.
And finally, we are dealing in a context here. And the
context is--and I speak as someone truly aggrieved that this
administration, post 9/11, rolled out the terrorist
surveillance program, decided unilaterally; it would not comply
with FISA, something I didn't learn until years afterwards, and
has been making security policy in the executive branch without
full regard for the laws that Congress has passed. I think that
is unacceptable. And that is my context.
So what I worry about is that even if this program is well-
designed and executed carefully by all of you, and I take you
as a man of good faith, that someone, somewhere else in the
administration, could hijack it and use it for other means. I
worry about it in this administration and I worry about it in
the next administration.
And to remind people who may have a short view of this,
there will be another administration. The President may be of a
different party, and I think some folks who just say the
executive branch should have all the power it needs are
forgetting that they may be giving power to a new Democratic
administration and they may rue the day that they did that.
So my time is almost out. My lecture has abated. But I have
just one question. Has anyone focused on Posse Comitatus and do
you know that this program, as you conceive it, will comply
with the Posse Comitatus Act?
Mr. Teufel. Ma'am, again while I am an attorney, I am not a
practicing attorney. Neither is Dan. My understanding is that
the lawyers have looked at the Posse Comitatus issue and that
it is nonviolated. Again I am speaking as a nonpracticing
lawyer here.
Ms. Harman. My time has expired, Mr. Chairman, I made my
point clear. But I would like to see that answer amplified by
someone----
Mr. Teufel. Yes, ma'am.
Chairman Thompson. Well, I think, Mr. Allen, can you
provide the committee with a response to Ms. Harman's question?
Mr. Allen. We will certainly respond to that question and
also give her the assurances of the legal framework and also
how the various concept of operations, guidelines, privacy
impact statement--which I think you already have--and the
processes by which we will operate. I understand the concerns,
but we believe that we are ready to operate this particular
program starting on 1 October. Otherwise, it will--under ad hoc
basis, I think you would want more layered oversight than what
we currently have.
Chairman Thompson. Thank you very much. Ms. Harman, do you
want to make a comment?
Ms. Harman. My comment is, Mr. Chairman, that with respect,
I don't find that answer satisfactory. I think this committee
should insist on reviewing the legal underpinnings of the
program and satisfying ourselves that this is being done
properly. And I say this on a bipartisan basis, this is the
leverage we have. We let this thing go, it may be another blank
check to the Executive, it may morph into things that will
terrify you if you really understand the capabilities of
satellites, and I for one would strongly oppose letting this
proceed without doing that careful review as quickly as
possible.
Chairman Thompson. Thank you very much. And I want Mr.
Allen to understand that I made the request; Ms. Harman has
made the request again. There is still significant discomfort
on the committee that we don't have enough written policies by
which this program is scheduled to begin October 1. And that is
an absolute unreadiness that I hope you hear from us in this
hearing. And we will before the end of the day provide a
written letter expressing similar unreadiness on the
committee's part.
We are now yielding 5 minutes to the gentleman from
Pennsylvania, Mr. Dent.
Mr. Dent. Thank you, Mr. Chairman. And I know Ranking
Member King talked about Supreme Court decisions. I would like
to follow up on what he talked about. As you gentlemen know,
some courts have ruled that the heat signatures emanating from
a public residence are protected by the fourth amendment. And
in Virginia, as an example, courts have held that utilizing
forward-looking infrared radar to detect the excessive heat
detected by marijuana-growing operations as the basis for
establishing probable cause to search that particular home is
improper.
I know that you are not dealing with infrared or heat
sensors. Given that example, what kind of safeguards will the
NAO have in place to ensure that law enforcement agencies
requesting technical assistance in surveillance are complying
with the existing State and Federal court decisions regarding
the fourth amendment--particularly State court decisions which
I think is more operable here.
Mr. Sutherland?
Mr. Sutherland. Thank you. Just to understand the process I
think will help. A request comes in for someone to use one of
the products or services of the NGA. It will now come into the
NAO. Within the NAO, located within the Department of Homeland
Security Intelligence and Analysis Directorate, there will be
attorneys who review it. There will be a privacy officer and an
officer for civil rights and civil liberties who will have
oversight of that. So there will be that filter.
The case law that you are referring to will be a
significant part of that filter, as well as other case law in
other areas. It wouldn't necessarily raise a fourth amendment
issue; it could raise other issues. If our internal analysis
decides that that is a request that does meet the proper use,
we would then forward it to the NGA, and the NGA has another
distinct and robust set of measurements and analysis that they
do and have been doing for many, many years.
So what Assistant Secretary Allen is saying is that by
bringing the NAO to DHS, which DHS has the unique capabilities
of a privacy officer and an officer for civil rights and civil
liberties, you are adding additional layers of review onto that
analysis of whether that is a proper use of the system. So NGA
is a robust way to look through the issues and our Department
will have that as well.
Mr. Teufel. I would like to expand on that. NGA has the
proper use memorandum, PUM, process. When a request comes into
NGA, as we understand it, NGA conducts a legal and policy
review and establishes controls on the information that will be
collected. And if a request is approved, the PUM will specify
what can be collected, who can receive the raw data, how it is
to be stored, how it can be used and who will receive the final
product. So at the NAO, the collection manager will review
existing PUMs and say, okay, I have a current request; does it
fall under an existing PUM? If not, a new PUM is requested and,
as I understand it, NGA has denied PUMs in the past for various
reasons. If it falls under a PUM, then the collection manager
will go to NGA under the PUM and make the request.
Mr. Allen. I would like to add to what Mr. Teufel said, is
that the Civil Applications committee falls directly under the
same rules and restrictions, even though it has operated for 30
years, and on occasion they have redirected some of the civil
application committee requests to make sure they are in
accordance with the proper use of that request.
Mr. Teufel. When I was at Interior, we did not review CAC
requests the way we at DHS will review NAO and CAC requests. It
is far more robust oversight than existed previously.
Mr. Dent. I guess my next series of questions--and I will
try to be quick--will be directed to Secretary Allen. I guess
the main question I have: Is there a risk of overloading our
intelligence communities with requests from various civil
authorities, and what happens if the NAO receives too many
applications for assistance, and how do we process these things
timely?
Mr. Allen. That is a great question because the process we
have today is ad hoc. If there is competition, NGA has to make
that decision sort of as the requirements flow in. Now we have
a more ordered process to look at the needs of the customers.
And then one of the good things, this is a clearinghouse. The
NAO is a clearinghouse and sets--not only looks at the needs,
but establishes priorities so we don't overburden these
classified capabilities that are used almost entirely for
foreign collection.
Mr. Dent. How long do you think--how much time would it
take between the time of the request being submitted to the
actual time of return of the requested information to the civil
authority? Do you have any idea?
Mr. Allen. If it is a research type of effort that the
Civil Applications Committee--it could take days, weeks or
months. If it is in extremis, as we did when the World Trade
Center was struck by airplanes, that was in extremis and was
done in matter of a few minutes. But as a general rule, it is
going to take--it is a very deliberate, considered type of
action. It can take days, certainly weeks and months if it is a
research type project.
Mr. Dent. Thank you, gentlemen. I yield back.
Chairman Thompson. Thank you very much. We now yield 5
minutes to the gentleman from Texas, Mr. Green.
Mr. Green. Thank you, Mr. Chairman. I thank you and the
Ranking Member for your opening comments. I thought they were
very insightful.
I would also like to thank these fine men for the service
they are rendering to their country.
Friends, if I may, I would like to share with you briefly
this thought. This country was founded, in part, because of the
unfetterred access that the king's men had to our property, to
our papers; and it was that unfetterred access that caused
people to venture across the ocean and come here so that they
could establish a system that would give them the kind of
privacy that we enjoy to this day.
The Founding Fathers were really brilliant men and--well,
of course, there were some women involved--who understood the
need and necessity for a fourth amendment. The Supreme Court
has held in Kyllo versus the U.S. that thermal imagery is
subject to the fourth amendment. The fourth amendment really is
kind of the cornerstone, if you will, of the home being the
castle. If we allow the unfetterred access by way of satellite
technology, which is unchartered space for us, we really don't
know exactly where this will end. We know where we are. And if
we allow it based upon custom and tradition, meaning we have
always done what we are doing, we allow it based upon the
notion that we have in-house people who will review this and
our in-house people will tell us whether we are making mistakes
or not, I think we are making a mistake.
It is not a question of whether it has been done before.
The question is whether what was done before was
constitutional. The question is whether what will be done is
constitutional. So we are at a point where, in my opinion, we
have to ask ourselves, do we have the kinds of checks and
balances that the Constitution envisions, not the kinds of
checks and balances that the executive branch envisions?
We just found that Dr. King's wife, Mrs. King, was being
surveilled unconstitutionally by the executive branch. We have
discovered that a Congressperson had his papers taken from his
office unconstitutionally. The question is: Is this
constitutional and are there checks and balances as envisioned
by the executive branch? To have the NGA under the executive
branch--and let me pause for a second and get this on the
record--is the NGA under the executive branch? Does everybody
agree that it is?
Mr. Allen. Yes.
Mr. Green. All right. If the NGA is under the executive
branch, it is not comparable even to the FISA courts. It is at
best an executive remedy. The constitution requires a broader
remedy that envisions the judiciary being a part of something
as pervasive as what we are capable of doing with the
satellites. My question is: Why don't we have the NGA or
something comparable to the NGA under another branch of
government? This is kind of the clearinghouse; do you agree?
Mr. Allen. I believe, sir, you are talking about the
National Applications Office.
Mr. Green. No. The National Applications Office, as I
understand it, it will go to the NGA and the NGA will review
and approve the collections of information. Is this not true?
Mr. Allen. That is not exactly the way it will work.
Because the National Application's Office, working with both
civil agencies, science agencies, as well as the Homeland
Security and potentially law enforcement----
Mr. Green. If I may, sir, please. Let me abridge your
comments. Will not the National Applications Office receive the
request?
Mr. Allen. They will receive the request and it will
prioritize it.
Mr. Green. If I may, please. Will not the National
Applications Office then take the request to the NGA?
Mr. Allen. After explicit, significant legal review.
Mr. Green. Yes, but they take it to the NGA. And will not
the NGA then give a yea or nay?
Mr. Allen. Another review, yes. If there is a difference,
it will be resolved between the two organizations.
Mr. Green. A rose by any name--that which we call a rose by
any name still smells just as sweet. Call it NGA, call it
National Application; either office is under the auspices of
the executive, true?
Mr. Allen. Both offices will fall under the executive
branch.
Mr. Green. That creates a great amount of consternation in
the minds of constitutional scholars. I believe it does. Why
not have NGA--or if we want to talk about the National
Applications Office, why not have this under the auspices of
the judiciary, something comparable to FISA? Probably I
shouldn't say comparable to FISA, but something--something
comparable to what FISA was envisioned to be. Why not have it
on the judiciary? The President appoints these FISA judges. Why
can't we have some other entity outside of the executive to
perform these as a clearinghouse?
Mr. Allen. I believe that no other element can really
understand the customers or----
Mr. Green. I beg to differ.
Mr. Allen. --or priorities.
Mr. Green. I beg to differ. If you are saying there are not
other people that have the intelligence and intellect to
understand the Constitution of the United States of America,
then we need to do away with the Supreme Court.
Mr. Allen. That is not what I said. You didn't let me
answer.
Mr. Green. Let me give you more time.
Mr. Allen. There are limits to physics. What we have is an
application for civil and homeland security purposes. And the
National Applications Office is going to bring into order and
focus already existing processes. It will have a broader
customer set, as Congresswoman Harman noted, but it will all be
done in accordance with the Constitution, in accordance with
the laws, and there will be checks and balances.
Mr. Green. If I may, please, sir. I have to intercede
because I have little time. It will be done according to the
executive branch's interpretation. And that, many times, will
conflict with the Constitution, which is why you have another
branch to give another opinion that can supersede the executive
branch's interpretation. Listen, I am imploring, I beseech you,
I beg that you please give some consideration to the notion
that we need a third branch of government or another branch of
government involved.
Thank you, Mr. Chairman. I yield back the balance of my
time.
Chairman Thompson. Thank you, gentlemen. The time has
expired. Mr. Allen, I hope you get the understanding that the
committee desperately needs the guidelines under which this
program is expected to be implemented. And the discomfort you
continue to hear is the lack of information that we have, and I
think you will hear it throughout the hearing.
I yield 5 minutes to the gentleman from California. Mr.
Lungren.
Mr. Lungren. Thank you, Mr. Chairman. This is a most
interesting hearing and I appreciate what the gentlemen at the
table are attempting to do, and I appreciate what members of
this committee are attempting to do. But let us see if we can
clarify this a little bit.
On the fourth amendment questions. In Florida v. Riley, the
United States Supreme Court said that surveillance by
helicopter at 400 feet did not implicate the fourth amendment
because anybody could be flying over at--a plane could fly over
and observe things.
In the Dow chemical v. U.S. case, where it was a business
that they were talking about, aerial photography over chemical
company complex, they found it was not a fourth amendment
search. But Justice Burger, Chief Justice, said this: It may
well be, as the government concedes, that surveillance of
private property by using highly sophisticated surveillance
equipment not generally available to the public, such as
satellite technology, might be constitutionally prescribed
absent a warrant, but the photographs here are not so revealing
of intimate details as to raise constitutional concerns.
It appears that the courts have viewed even sophisticated
aerial photography from satellites is not implicating the
fourth amendment because you are using enhanced techniques, but
you are basically doing what you could do if you were flying a
bit lower, and protecting yourself by being at a higher level.
But--wait a second. The question that comes up is with thermal
imagery, because in the Kyllo case that the gentleman
suggested, in an opinion written by Justice Scalia, they talked
about--this is a law enforcement case using thermal imagery in
a law enforcement investigation against a home. And we were
talking about the right of privacy really implicating itself
when you are talking about a home.
So I guess my question is this: Are all three of you
agreeing that this program does not send it to thermal imaging
of homes? Would that be correct?
Mr. Allen. That is my view. As I said, we can use infrared
in a broad sense to look at forest fires and hot spots, but not
homes. There is a huge difference.
Mr. Lungren. You are using infrared and those sorts of
things to look at hot spots. The idea of thermal imaging to
penetrate a house is to see--in cases we had in California when
you are dealing with marijuana, you were trying to find out
whether marijuana grows there. The courts basically said,
absent a warrant, you couldn't do that. You could actually get
a warrant to find out the electrical bills of a company and
look at it that way, but still you had to have some basis to
get it. But the idea was that somehow that imagery allowed you
to penetrate the walls and see people.
That is different than finding hot spots to locate the
presence of fires or look at agricultural grows and those sorts
of things. And that is all that I want to make sure we are
doing. Because when I saw the article that appeared in the New
York Times, and they are talking about spy satellites being
used domestically, the idea was we were violating the fourth
amendment. But if what you are telling us is what you had done
before, where we use sophisticated technology, we enhance the
view that we get from satellites so that we can see what can be
seen by the eye if you were there at a lower elevation, that is
one thing. And that doesn't bother me because that passes the
test. I mean, it passes the Supreme Court test in every single
situation. But the specter has been raised by the headlines to
suggest that you are going to spy on people in their homes,
violating my-home-is-my-castle doctrine which underlies,
really, the basis of the privacy protections in the
Constitution.
I think that is where you have members very concerned. And
if you could be very explicit in your rules that that is not
what you are doing, I think you resolve a lot of the problems
we have here. And the American public then realizes we are not
talking about looking into your bathroom, we are not talking
about looking into your bedroom. We are talking about things
that are otherwise visible if you were there in closer
proximity. That is all I am trying to get from you.
Is that your understanding and will that be incorporated in
the documents that you have that we will be able to review?
Mr. Allen. That is well understood, and we can demonstrate
that that is the case, that we are not here, it does not
penetrate buildings, it does not penetrate homes. This is to be
used in a much broader sense as you have described. And the
differentiation is very significant. I will let Mr. Teufel----
Mr. Lungren. Is there anything I said that you disagree
with?
Mr. Teufel. No, absolutely not. If the national technical
means were to be used in that fashion and there were not a
warrant, as required under the fourth amendment of the United
States Constitution, my colleague, Dan Sutherland, and I would
be racing over to see Charlie Allen to talk to him about the
improper unconstitutional use.
Mr. Lungren. That is incorporated in the principles that
you have in the documents that you are bringing forward; is
that correct?
Mr. Teufel. And it is also part of NGA's PUM process. And
NGA would not allow such an inappropriate, improper use of the
satellites.
Mr. Lungren. But it is part and parcel of the documentation
that you have that regulates this program and that we are going
to have a chance to look at; is that correct?
Mr. Teufel. The Constitution of the United States, sir.
Mr. Lungren. I am talking about the principles laid out in
the way you are going to operate.
Mr. Sutherland. If I can say, the concept of operations
incorporates that. Yes, we are working on standard operating
procedures for--they are in draft form, yes. And the executive
committee, as it forms, and the working groups that come from
it will incorporate all of this. So the answer is absolutely
yes.
Mr. Lungren. Thank you very much. Thank you, Mr. Chairman.
Chairman Thompson. Thank you. But the point, for the
committee's sake at this point, is that at present there is no
such approved document that guarantees just what Mr. Lungren
said, other than the Constitution of the United States?
Mr. Sutherland. Chairman Thompson, right now there is a
concept of operations document that is set final, and I believe
it has been provided to staff. But this is what Secretary Allen
was saying earlier. He will make sure that is in everybody's
hands by the end of the day. But in the upcoming weeks, we have
a standard operating procedures document and other documents
like that. And as I think we have been saying, we clearly need
to be working with the committee, as we form those, in giving
you visibility on this to give everybody the level of comfort
that they need to have.
Mr. Allen. That is correct. We provided, I believe, the
concept of operation on the 17th of August. As you know, we
also worked with the Intelligence Committees to ensure they had
no concerns, and briefed them as well as the appropriators. So
you need to have more materials to satisfy your needs.
Chairman Thompson. Excuse me. You briefed the appropriators
but not the authorizers. I think that is the point. And
whatever documents we have received, we got them from the
appropriators. We did not get them from the Department.
Mr. Allen. We did brief the HIPC, which authorizes my
budget, since it falls under the national intelligence program.
We did not brief you from an oversight perspective, and I have
apologized for that.
Chairman Thompson. Well, the standard operating procedures
are yet to be received by this committee. And I think until we
receive those documents by which this program is to go forward,
it is not in the best interest of any of us for that October 1
to come with you implementing that program.
I yield 5 minutes to the gentleman from Colorado, Mr.
Perlmutter.
Mr. Perlmutter. Thanks, Mr. Chairman. I really don't have
that many questions. It is more of a statement, and I apologize
for missing a number of the questions that you have been asked.
You three gentlemen come to this committee--and I think the
committee and I know I hold all of you in high regard. And the
real disappointment has been we feel like you have gotten the
cart before the horse, that this thing really has--is a fait
accompli--and some of the others may have said this-before you
really took time, in our opinion, to look at the privacy issues
that come with this.
And, Mr. Teufel, it is a big difference between going from
the Interior Department and the U.S. Geologic Survey to the
Intelligence Department of Homeland Security. There is a major
shift in emphasis just by going from one place to the other.
And if it is only that, these protocols and procedures have to
be in place.
And the fact that we are the last people to hear about it,
as some of you in the Privacy Department of the Homeland
Security were, that is the problem. And and some of these
things, as Mr. Lungren has said, and I think Mr. King too, have
been going on a long time, whether it is for Hurricane Katrina
or maybe a national security event.
So we need to know, though--and there may be instances, Mr.
Allen, where you might want to be able to view into a home with
infrared. But obviously if that is the case, we want to have
some procedures that comply with the Constitution.
And it isn't just the courts that set those parameters as
to what the first amendment means or the third amendment. I
mean, everybody talks about the fourth amendment, the
warrantless,--the need for warrant. But the third amendment
says you are not going to have government in your house,
period, except during times of war.
And my comment--and I guess how in the future, Mr. Allen,
can--as you develop new programs, can you include the privacy
side of the Department earlier on and contact us earlier on? I
am on the Intelligence Committee of this committee and really
hadn't heard anything about it until we got the papers a few
days ago.
Mr. Allen. And I appreciate, Congressman, your concerns.
And as I said, the legal framework, the guidelines, the
procedures, the protocols, we have a good number of them in
place and I think they will meet your needs and requirements.
One of the things that came very late, of course, was the
Director of National Intelligence letter of designation which
put into motion full planning back in June. We only received
the actual letter of designation that the Secretary of Homeland
Security will be the executive agent in June. So we had done
some preliminary planning, but now we are doing it full bore.
So part of it is catching up with the fact that now we are
working with the Civil Applications Committee, the Department
of Interior, the U.S. Geologic Survey and others. We had set a
tentative date to begin operation around 1 October. We advised
the appropriators of this and they have provided us with
reprogramming so we can spend some dollars to get ready for
this.
But I understand your concerns, procedures, protocols,
guidelines. We certainly will give you the legal framework
which we have outlined already. But this has been probably one
of the most reviewed programs, certainly, in the executive
branch. That has been my experience. But I understand your
concern.
Mr. Perlmutter. Thanks, Mr. Chair.
Chairman Thompson. Thank you very much.
We now yield 5 minutes to the gentleman from Washington,
Mr. Reichert.
Mr. Reichert. Thank you, Mr. Chairman. Thank you all for
being here. It is good to see all three of you again.
I just want to follow up on some of the same discussion and
conversation you have heard here this morning already. First,
Mr. Allen. Was it an oversight on your part not to include the
civil rights and civil liberties and chief privacy officer
until later on in the process, or was that----
Mr. Allen. We had the DNI's civil rights and civil
liberties officer involved in November of 2006 when we started
talking about the fact that this could come to Homeland
Security with a letter of designation which we didn't have at
the time, and Mr. Teufel, I believe, had an officer with that
working group. We got the letter of designation and, of course,
the civil rights, civil liberties, and Mr. Teufel did a privacy
impact statement this spring and early summer. So I think we
have worked very much, as these gentlemen have stated, in close
cooperation and collaboration with both officers.
Mr. Reichert. Mr. Sutherland testified that he came into
the process in July. Do you agree, Mr. Allen, he should have
been brought into the process earlier?
Mr. Allen. In retrospect I think that would have been the
case. But we have worked cooperatively on all issues with Mr.
Sutherland.
Mr. Teufel. Sir, if I may. I had the opportunity to speak
with Alex Joel, who is the civil liberties protection officer
over at ODNI. I know what my office's timeline was and I wasn't
quite sure what his was. Alex Joel became aware of this process
back in October of 2006. And in November of 2006, a member of
my staff participated in a working group or the entity that was
brought together to look at this. And both Alex and my staff
were aware that at the very beginning, back in November or
shortly after November 2006, put into the documents is the
privacy officer and the civil rights and civil liberties
officer must be working--we must be working with them on this
to ensure that we protect privacy and civil liberties.
Now, my office got more heavily involved with the NAO in
spring of 2007, and for a period of time--I want to say between
1 and 2 to 3 months--my office worked with the NAO and INA to
put together this privacy impact assessment.
Mr. Reichert. Would you disagree with the member of the
second panel that has provided testimony that you were
marginalized in this process?
Mr. Teufel. I haven't seen that testimony.
Mr. Reichert. Do you feel you were marginalized in this
process?
Mr. Teufel. No, not at all. Since I have been in the
office, I have done a great deal working with Charlie and folks
on his staff to get the privacy office more deeply involved
with the things that INA is doing so that we can be there early
and often to make sure the privacy protections are in place.
Can we do better? We can always do better. But I have got a
very good close working relationship with Charlie Allen and his
staff, as does Dan. Dan and I worked together very closely, as
we do with our colleague over at ODNI, Alex Joel. So I would
disagree that my office--and, for that matter, Dan's office--
has been marginalized.
Mr. Reichert. Can you explain to me, then, what the process
is when you do witness a violation? What happens?
Mr. Sutherland. Congressman, we deal with issues that cover
the whole gamut of the Department of Homeland Security and the
homeland security efforts. So we deal with them essentially the
same. We go to the people responsible for the program and
explain our views on why they might shape the policy in a
different way. If we are--Hugo and I both talked about this
publicly. If we feel that there are major concerns, I report
directly to Secretary Chertoff. I have great relationships with
Assistant Secretary Allen and his peers in the Department, and
we talk regularly. So we would go directly to senior officials
and raise these issues.
Mr. Reichert. Your investigative policy would be put
forward, you would investigate the issue and come out with a
finding?
Mr. Teufel. Sure, if necessary. If there is a problem,
typically it is resolved at the staff level. If it were to get
to me, and, I assume probably also with Dan, I am going to make
a phone call to the principal or that principal's chief of
staff within the Department to say, hey, we have got an issue
here we need to address. Around the same time, I am going to be
in contact with the general counsel's office to let them know
there may be a legal issue that needs to be addressed. If it
doesn't get resolved then--and it has never been the case that
we haven't resolved an issue when we have been speaking with
the component head--then I am going to the Secretary and the
Deputy Secretary with my concerns.
Mr. Reichert. If I may, Mr. Chairman, one last question, a
simple question. Does moving the Civil Applications Committee
from the Department of the Interior to the National
Applications Office within Homeland Security create new risks
to the privacy and civil liberties of U.S. citizens?
Mr. Allen. I will let my colleague speak. But we are going
to continue the same processes, only with greater layers of
review from the Civil Applications Committee. My commitment to
the CAC, as it is known and been known for many years, is to
give it robust support so that it--scientific research,
particularly on things like climate change and environmental
damage can be continued. They have done some great work. The
CAC needs stronger support, and I intend to give them that and
I will let my colleagues talk about the civil rights/civil
liberties aspects.
Mr. Sutherland. Congressman, we believe there are
additional layers of review and analysis that are brought to
bear with this new structure. That did not exist before.
Protections, procedural protections that are in place.
Certainly when you expand the customer base, there are going to
be novel--I presume there will be novel requests for use of the
technology. That is the reason why it is great to have the
increased scrutiny that the NAO brings.
The Department of Homeland Security is unique in the
Federal Government in that we have a chief privacy officer who
sits in the position, and with the authorities that Hugo does,
and officer for civil rights and civil liberties. We are a
unique department in that sense and that is one of the values
of having the National Applications Office within this
Department.
Mr. Reichert. If I may just comment quickly, Mr. Chairman.
I appreciate your testimony and I do share the same concerns
that the rest of the members of the committee have shared with
you, but I do have a great amount of faith in your abilities to
protect our Constitution. But I do think that the oversight, as
Mr. Allen and others have said, and the access to that report
would be a great asset for us.
I have personal experience in asking for assistance from
the Secret Service and the FBI--in some of this technology that
you talk about--back in the mid-1980s and it was denied to
local law enforcement, the sheriff's office that I happened to
be the sheriff of back in Seattle. So I know there is some
oversight there. At least back then. And I am certain that
Congress was made aware of the technology when it existed back
in the middle 1980s.
And I appreciate your testimony. Thank you.
Mr. Teufel. If the fourth amendment required a warrant
before, the fourth amendment requires a warrant today. And if
there are any violations of intelligence law or policy, they
have to be reported to the President's Foreign Intelligence
Advisory Board and potentially to the Attorney General. So I
just wanted to advise you all of that.
Chairman Thompson. Thank you.
I yield 5 minutes to the gentleman from North Carolina, Mr.
Etheridge.
Mr. Etheridge. Thank you, Mr. Chairman.
Let me thank each of you for being here and also for your
service. And I will say from the outset, so you know where I am
coming from, I agree with Ms. Harman. I think that we have got
work to be done in this area.
I hope you understand why this committee is so sensitive to
this, of what is going on. When you read it in the paper first,
it puts us in a defensive mode to start with.
So that sort of leads me to my question. I served in the
State legislature one time with what I thought was an
outstanding legislature, but also a great attorney, and I
remember one comment he always made. When he was a trial
attorney, he always wanted to depend on people trusting him.
But when he got to the General Assembly, he always wanted to
know about the law. He was concerned about what the
underpinnings of the law are.
I think we are here in an area where where a high level of
trust you can delegate to people you trust. But what happens to
those people who follow when you don't have firm, hard
guidelines with underpinnings of the law? Let us talk beyond
that. Because I think it is critical and we are getting on an
area where Mr. Allen said earlier, we are talking about an
expanded customer base. We are in a new area. This hasn't been
there before.
So my question is this, I guess. What has sparked the need
to expand the access to spy satellite imagery? And I guess my
big question ought to be why was the former system so
inadequate?
Mr. Allen. The former system was--I don't know that it was
totally inadequate. It did excellent work. All that the
commission--and we had distinguished Americans serve on it and
studied it and recommended unanimously that there probably were
some opportunities that were being missed to help protect the
homeland, to provide greater security on things like ports and
borders and infrastructures; that we should address those kinds
of requirements.
What it recognized was that these are capabilities that
probably could be used with great care--because it emphasized
civil rights and civil liberties and privacy in this report
back to the Director of National Intelligence--was that there
could be greater opportunities to help keep the country safer
and more secure. That is the reason that the report--the study
was conducted. The DNI did not designate the Secretary of
Homeland Security until June of this year, just 3 months ago, a
couple of months ago, as the executive agent. We are now
working hard to get the protocols in place.
Mr. Etheridge. Let me follow that. Can you provide examples
of requests you would feel exceed the existing legal limits?
And secondly, are you aware of any such potential abuses of the
spy satellite imagery that occurred in the wake of Hurricane
Katrina; because you talked about having to use it for that, to
help with that?
Mr. Allen. I will let my colleagues speak about any
violations. I was not at Homeland Security when it was used in
Katrina and Rita, but it was used. It was very valuable. The
National Spatial Intelligence Agency did good things to bring
capabilities in a hurry to help save lives and to prevent
further damage to our country, particularly down in Louisiana
and Mississippi. It was of great use. The Secretary of Homeland
Security deeply appreciated that capability. But I know of no
violations of any law during that. Now, as far as what might be
violations of the law, I leave it to my colleagues to discuss.
Mr. Sutherland. One can always imagine hypotheticals that
would violate the law. You pointed out it would be difficult to
imagine a fourth-amendment issue in this context, but we will
certainly be looking at it. And the advantage, as I said
before, of having the NAO within DHS is you add a layer of
several additional attorneys, and then those with specialties
in the area of privacy and civil liberties more generally, who
are going to be reviewing these. So one can imagine
hypotheticals. That is our responsibility, is to look at the--
when we have an increased customer base, hopefully you will
have increased quantity of requests for this outstanding
technology. Our job is to make sure that increased quantity
does not sacrifice quality, and we will be able to do that in a
number of different ways.
Mr. Etheridge. Mr. Chairman, it seems to me in closing that
the request that each member has made, I think thus far--and I
echo that--that we spend more time with you, and getting your
hands on the documentation so that we can feel comfortable; and
hopefully in the future others can feel comfortable and the
American people can feel comfortable that we really are working
to protect them, as I know you are, but also protecting our
civil liberties as well as theirs.
Mr. Allen. Thank you, Congressman. We will do that.
Chairman Thompson. Thank you very much.
Yield 5 minutes to the gentleman from Georgia, Mr. Broun.
Mr. Broun. Thank you, Mr. Chairman. I believe in my heart
you are honorable folks and I believe, as you state very
fervently, that there are protections within your agency. That
doesn't satisfy me. Frankly, I don't believe this horse is dead
yet, so I will beat it more.
I agree with Ms. Harman that I think you have a real Posse
Comitatus problem here and also I know that technology is
expanding tremendously--minute by minute almost. And I have a
tremendous distrust of government. And I am not assured by you
gentlemen that there are sufficient checks and balances put in
place, because what I hear from you-all is that the agency can
police itself and there is no outside policing of the agency by
some separate entity of government.
As Mr. Green was talking about, I believe very firmly that
there needs to be some outside review, there needs to be some
way of going to check the agency itself. We are talking about a
new agency. We are talking about new technology. We are talking
about advancing technology. And I believe that every person on
this committee wants to make sure that this Nation stays safe
and secure. But I for one am not willing to give up my
liberties and my constitutionally protected God-given rights to
your agency or any other. And I hope you see from all of us
that there is a tremendous concern here.
I am new on this committee and I am just trying to get
ahold of things that are going on. And it just deeply concerns
me as a new Member of Congress about what you are telling me,
because I don't see any outside review. I don't see any sort of
effort on your part of looking beyond the agency itself.
So please reassure me, how--when there are other people
sitting in your seats, how in the future, as new technologies
develop, how as we advance a year, 5, 10 years from now, that
there won't be intrusions into people's privacy and their
private lives so that we can protect our homeland, that we can
protect the national interest, but that individuals, law-
abiding citizens aren't under danger. And I don't see that.
Frankly, I don't see that and I don't hear that from this
testimony today.
So if you-all could assure me, I would feel a whole lot
more comfortable and hopefully the other members of this
committee will, too.
Mr. Allen. I think we have gone through the layers of
review. And this is an office within a Department, and there
are layers of review there. There is another whole agency
within the intelligence community called the National
Geospatial Intelligence Agency which has also significant
reviews and they only--they only do this where there is a
proper use memorandum. There are--and there is significant
review of them.
There is also the Director of National Intelligence who has
his own civil rights/civil liberties officer. And the DNI is,
you know, responsible to ensure that all of his activities are
under his--he designated this to the Secretary, or done legally
and properly. There is the President's Foreign Intelligence
Advisory Board, PFIAB, and under it is the Intelligence
Oversight Committee which also looks for any violations of
intelligence law, of intelligence operations and activities. So
there is huge review. And it is beyond just this office, which
I will be the operations manager within the Department. But I
will let my colleagues talk about proper use. And, of course,
probably the most significant review is here today, the
Congress of the United States.
Mr. Sutherland. I think Secretary Allen said it well. I
think Mr. Toefel and I both have been getting briefings on the
capabilities of the system, and I think the technology, which
the Secretary could speak about much more articulately than I
can. The technology and what the purpose of the imagery is, is
not concerning just the capabilities of the system. And I don't
know if you have been able to talk about that a little bit
more.
Mr. Allen. The capabilities, I know and I deeply respect
Congresswoman Harman. There are limits of physics. We are
talking about space systems. We are not talking about, as
Congressman Lungren pointed out, airborne or other kinds of
manned or unmanned aircraft. We are talking about systems
today, a great deal of the requirements probably as they come
in from these civil users, non-Defense users under the National
Applications Office, a lot of them could be satisfied by
commercial imagery. Commercial imagery is a growing industry,
and commercial industry has capabilities that are reaching and
approximating those of classified imagery satellites. And there
are many waiting to be launched around the world.
So I agree with you, we are in a different era where
technology is driving us into a world of deeper concern. And no
one has more concern I think than I do, given my career with
intelligence and with the Central Intelligence Agency.
But from my perspective, there is significant oversight
throughout these processes. And these systems are not directed
at individuals, because these systems are not capable of that
from space. And we are talking about a space-based system here.
Mr. Toefel. I just want to add, sir, I share your distrust
of government. That is why I took the job that I hold
presently. And I know that the Founders had a profound distrust
of government. And so when they crafted the Constitution of the
United States, they made it a limiting document, limiting what
we all can do, we who work in the Federal Government. And so I
am very focused on that because we all have sworn an oath to
protect and defend the Constitution. And so I want to tell you
that, that the Constitution means a great deal to me.
There are a number of agencies that are involved in
oversight here, far more than existed previously. A number more
people who are going to be looking at this thing, including
career employees, career employees in my office who in our
close work with INA are becoming more and more involved at an
earlier and earlier level with intelligence and analysis
activities. And they have various protections under the law
that, if necessary, to protect their country and the
Constitution, they can and doubtless will exercise.
Chairman Thompson. I can appreciate that. But I have asked
Ms. Harman and Mr. Carney to expand on this whole issue from
the Committee's perspective in their chairmanship. There are
some real concerns that we have going forward with this program
that I have heard from everyone. And some of the things that
are being said, I am not comfortable with. The technology can
do a lot of things, and people saying that it can't causes me
real concern. But those two individuals kind of take the
leadership.
Mr. Carney is chairman of the subcommittee for the full
committee, and I will yield 5 minutes to him.
Mr. Carney. Thank you, Mr. Chairman. I do have a number of
questions, but first I will yield 30 seconds to my colleague
from Texas, Mr. Green.
Mr. Green. Thank you, Mr. Chairman. And thank you for
yielding.
Two things. One, the Constitution, the Fourth Amendment
contemplates privacy in the home. But it really concerns
privacy, and the home is not the only place where the Fourth
Amendment contemplates privacy.
The second point: If you have an issue that you deem to be
important enough to take to a court to receive a proper
warrant, what court would you take it to?
Mr. Sutherland. I assume, sir, that it would be taken by
the prosecuting attorney in whatever jurisdiction which they
are seeking to use that information.
Mr. Green. I ask this question, Mr. Chairman, because it
may be necessary for us to deal with jurisdictional questions
in terms of the judiciary as it relates to the issue of what
court they would eventually go to, assuming they had a
legitimate question they wanted to bring up.
Finally, I would make this comment. I respect you, sir, and
have great appreciation for what you are saying. But J. Edgar
Hoover, who was the head of the FBI, a great patriot, spied on
Dr. King. The FBI spied on Mrs. King after his death. It was
all unlawful. So, we cannot assume that the Executive is going
to be judicious when it comes to the Fourth Amendment.
Mr. Toefel. You are right, sir. So let me point out that,
under the 9/11 Commission Report bill----
Chairman Thompson. The gentleman yielded back his time. It
did not require an answer.
Mr. Carney. If Professor Toefel would like to answer, that
would be fine.
Mr. Toefel. I just wanted to point out that, under the 9/11
Commission Report bill that was enacted, the Privacy and Civil
Liberties Oversight Board has far greater independence. And
that is the first entity with independence that I would point
you to, greater independence than my office or Dan's office.
And then the second office that I would point you to is the
various Offices of Inspector General at DHS, at whatever
requesting agency, and over at DOD. And the inspector generals
have great independence and can look into allegations of
impropriety, unconstitutional, unlawful activity whether at DHS
and the NAO or over at NGA.
So I wanted to call that to the committee's attention.
Mr. Carney. Thank you for that.
With my background, I have a little more faith in our
systems and their capabilities than Mr. Allen is letting on, I
think, here. Can somebody describe the steps and the process,
how this actually works? You get a request from law enforcement
agency X. Then what happens?
Mr. Allen. You could get a request from the Federal Bureau
of Investigation. Today it goes directly to the National
Geospacial Intelligence Agency. Under our proposed system, it
would go to the National Applications Office, where it would be
looked at to see if it is lawful and meets the needs for what
for the request, that it is prioritized, and then sent over to
the GNGA where it is looked at again for its proper use, under
the Proper Use Memorandum which the Bureau would have
submitted. And then, if it is proper and lawful, it will then
be put into the system to get access to conduct, collect that
imagery. The NRO would do that. The NRO simply operates the
satellites. And then the material would come back and then be
geospacially looked at and read out by analysts. The U.S.
Geological Survey has its own analysts, and they do a great
job. Some of the material is read out immediately by the
National Geospacial Intelligence Agency.
So it works very well today, but I think it could work
better under this National Applications Office, certainly a
broader set of customers.
Mr. Carney. How long does this take, this process?
Mr. Allen. We are getting into classified areas when we
talk about capabilities of our satellites.
Mr. Carney. No. How long does the process take?
Mr. Allen. The process can be very quick. It can be a
matter of hours, or it can take a significant longer period of
time if it is a routine, a nonemergency type of request. I
mean, I am restricted on speaking specifics about our
classified satellites and their capabilities.
Mr. Carney. That, I understand. But I am just talking about
just the process here. We are talking about novel issues
sometimes. I think that was Mr. Sutherland's term.
Mr. Allen. If it is a novel issue, I am sure it would be
given a lot of scrutiny and would take significant layers of
review before. And if it was decided not proper, the requesting
agency or department would be told it was improper.
Mr. Carney. Are we talking days, weeks, hours?
Mr. Allen. It depends on the urgency. Because--I think you
all do not have a clear idea of what the NAO is. It is a
clearinghouse that looks at needs and/or requirements from non-
Defense users, potentially, and then to help look at those; if
they are competing priorities, to help make recommendations to
the NGA on which takes precedence. So we view this generally as
sort of a nonurgent, nonemergency process. But if a hurricane
hits Louisiana or Mississippi, we obviously are going to give
it high attention. And NGA will turn it around in a very quick
period, certainly overnight.
Mr. Carney. But for law enforcement applications, how does
that work?
Mr. Allen. We are only now forming a legal working group
under DHS, DNI, and the Department of Justice to look at how
law enforcement uses might be employed. But it would be on a
case-by-base basis. So this is downstream. This is not my
highest priority. My highest priority is to make sure that
homeland security, along with civil applications, gets full
support.
Mr. Carney. Well, there are criminal applications in
Homeland Security. For example, legal immigration, et cetera.
The concept of operations and the SOPs, two different things
obviously. The Con Ops have been done for a few weeks now. Is
that correct?
Mr. Allen. We provided it I believe to your staff on 17
August, is what I was told by my own staff.
Mr. Carney. And the SOPs should be done, when?
Mr. Allen. We are working on the SOPs. Some of the
guidelines are done at this stage. Others are yet to be
completed. But we are moving ahead.
Mr. Carney. Will the SOPs be completed by the October time
frame?
Mr. Allen. I believe, as we understand how to use--for
example, if we ever use law enforcement applications directly,
that is downstream. Most of the standard operating procedures
will be available and the guidelines by 1 October. I believe we
can meet that deadline.
Mr. Carney. Certainly, Mr. Secretary, you understand that
we are anticipating downstream; we are trying to do that, too,
to make us all think about how this is going to go forward. We
all have jobs to do, we all have our roles in protecting this
Nation, and we've got to get it right. So I just want to get as
much clarified up front as we could.
Thank you, Mr. Chairman.
Chairman Thompson. Thank you very much.
We yield 5 minutes to the gentlelady from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. Thank you, Mr. Chairman. And let me thank
you for the hearing; as well as the subcommittee chairwoman,
Ms. Harman, for her insight.
Allow me to first of all lay the framework and make it very
clear that I don't intend to suggest untoward activities or
thoughts behind this program by any of the individuals who work
for the American people. I believe your intentions are well.
However, I have come to understand since being on the Select
Committee on Homeland Security, this Committee was set to
ensure or to assure the American people that the Congress of
the United States must have as its highest priority the
securing of America. So I would take great issue and offense
and will continue to have this offense to have discovered this
process and program in the Wall Street Journal.
And then it seems that the administration embraces August
as a month where they make big announcements. Maybe it is so
that you can have the complete limelight, and Congress is not
in session. But that, I think, does damage to the
constitutional premise of the three branches of government and
how we are to work together. So we find that you issue a fact
sheet on August 15, 2007, which leaves a great deal of question
as to the good purposes and good intentions of making sure that
Congress and this Committee is a real partner.
We have a very important responsibility that I will never
undermine or deny, to protect the American people, but also
their civil liberties and civil rights. Let me remind you of an
incident by the former majority leader of this Congress, Tom
DeLay who decided to use the FAA and to use a government plane,
and I will not suggest it was Department of Defense because our
facts get somewhat strayed, to go after State legislators in
the Texas legislature regarding a question of redistricting. I
am sure the utilization of the plane on behalf of the United
States of America and the American people was originally of
good intentions but, unfortunately, ultimately a member of this
body abused the process. So abuse is not unknown to government.
And I would simply suggest that our concern is more than
legitimate because of the way, first of all, that we were
apprised of it. It almost seems that we wanted to make sure
that we were not a partner.
Let me pose this question to Mr. Allen and again thank him
for his service. I know that it may have been raised before,
but we realize that these satellites are coming in from the
Department of Defense, and we know how to find a firewall that
we want to keep, based upon the Posse Comitatus Act, and we
also know that you have had for 30 years access to the National
Geographical Survey Civil application system, which is also a
satellite. What precise mechanisms are going to ensure us that
we are not violating the Posse Comitatus Act with the use of
this spy satellite? And again, if you would recite for me the
firewall, the, if you will, complete concreteness that there
will not be an abridgement of the civil liberties of
individuals who could be caught up in the fishnet of the local
law enforcement requesting utilization of this equipment, Mr.
Allen.
And if all would answer this question, I appreciate it.
Mr. Allen. I think all should comment. We certainly want to
keep you informed and be transparent. I have told the chairman
that, evidently in this case, we did not fully brief him or his
subcommittees at a level that was required, and that is
regrettable. And I have said that, and so did the Secretary of
Homeland Security has said that.
Ms. Jackson Lee. And it opens us all up to exposure.
Mr. Allen. So let me again say that that was not done well.
But I think we have set forth here an organized structured
process to bring into order processes that are occurring and
have occurred over decades for other purposes than just civil
applications. Scientific research. We want to continue that.
And we believe that, in response to the Blue Ribbon Commission
that there are other things that we can do on a very protected
basis for civil rights, civil liberties, and privacy to help
assure better the security of this country. We do not call them
spy satellites, we call them remote sensing capabilities or
classified satellites. These are imagery satellites that we are
talking about. We are not talking about anything beyond that.
I will let me colleagues again speak to any issues relating
to constitutional questions or Posse Comitatus or questions of
firewalls.
Mr. Sutherland. Congresswoman, we have described the
different layers of review that are incorporated here and the
concepts that you are laying out and other members are laying
out about the importance of protecting civil liberties. That is
a principle that has been embedded throughout. I laid out in my
testimony why I am optimistic that we will have a good working
relationship to be able to bring the kind of analysis that you
are talking about into the work of the NAO.
I think that much of the concern here in the Committee
could be alleviated by more extensive briefings from NGA, which
again has had nearly 30 years of experience in working through
these issues and how they deal with Posse Comitatus, how they
deal with routine requests, and just to have a depth of
understanding of how they deal with their process onto which
then we are adding additional layers of review.
Ms. Jackson Lee. Mr. Toefel, you are solely responsible for
this. Give me a straight answer on the Posse Comitatus, please.
Mr. Toefel. Ma'am, I will do the best I can. Understand
that I am the privacy officer; I am not in a legal position,
and I am not here testifying in my other government capacity as
a judge advocate in the Army National Guard. So I will do the
best that I can do to describe the Posse Comitatus Act, but it
is really something for our lawyers to do.
As I understand the Posse Comitatus Act, it prohibits
direct support to law enforcement activities such as arrests.
When in title 10 status----
Ms. Jackson Lee. Using Department of Defense.
Mr. Toefel. Yes. When in title 10--and if I recall
correctly, the language of the Posse Comitatus Act addresses
the Army and the Navy. Again, I am here as the privacy officer,
not as a judge advocate or a representative of the General
Counsel's Office at the Department. So if I am getting this
incorrect, understand it is a policy guy speaking with you,
ma'am, trying to do his best to answer your question. So----
Ms. Jackson Lee. I am just trying to get you to help Mr.
Sutherland.
Mr. Toefel. I am doing the best I can, ma'am.
So NGA can provide indirect support, technical sorts of
things, but it must be done under the direction of law
enforcement. Again, as I understand the Posse Comitatus Act.
There is no Posse Comitatus Act implication if the national
technical means are used under title 50 status. And, as I
understand it, they can then provide support. But, again, this
is as a nonpracticing lawyer trying to answer the question
about whether the Posse Comitatus Act applies.
Ms. Jackson Lee. I know my time is up. I just want to say
that I think they have tried their best to answer the question,
but it has not been fully answered, and we need to pursue it
further.
Chairman Thompson. I was going to make that point. Ms.
Harman had already raised that issue, and I am sure these
gentlemen will have that opportunity to respond in writing to
some of the inquiries we will have.
Thank you, gentlemen, for your presence and presentation
and response to the questions. As you know, we will probably
have significant issues to share with you that have been raised
with the committee. We look forward to not only your
acknowledgement of those issues but your prompt response back
to the committee, given this October 1 time frame that we have
been told that this program is scheduled to begin. Thank you
very much.
Mr. Allen. Mr. Chairman, thank you. We look forward to
responding and getting back to you promptly. Thank you.
Chairman Thompson. Thank you very much.
We would like to ask our second panel to come forward,
please.
Chairman Thompson. We would like to welcome our second
panel. Our witnesses, Mr. Barry Steinhardt is director of the
ACLU program on technology and liberty. And Mr. Steinhardt
served as associate director for the American Civil Liberties
Union between 1992 and 2002.
The second witness, Ms. Lisa Graves, is the deputy director
for the Center for National Security Studies, a nongovernmental
organization that researches and advocates for civil liberties
on national security issues.
We would like to welcome you to the hearing. And, without
objection, the witnesses' full statements will be inserted in
the record.
I now recognize each witness to summarize his or her
statement for 5 minutes, beginning with Mr. Steinhardt.
STATEMENT OF BARRY STEINHARDT, DIRECTOR, ACLU PROGRAM ON
TECHNOLOGY AND LIBERTY, AMERICAN CIVIL LIBERTIES UNION
Mr. Steinhardt. Thank you, Mr. Chairman.
The government's use of spy satellites to monitor its own
people, and let me emphasize that. This is to monitor the
American people. This is not weather phenomena. This is not our
National infrastructure, bridges or the like. This is people
who are being monitored here, represents another large and
disturbing step towards what amounts to a surveillance society.
Our response, especially the Congressional response to this new
technology, will serve as an important test case for how wisely
we handle the introduction of powerful new technologies.
Congress needs to act before this new technology, this new
tool is turned inward on the American people. We need to
establish a regime of checks and balances and law that protects
us against their misuse.
The chairman and this Committee have taken an important
first step in calling the Department of Homeland Security to
account and holding this hearing. You have our thanks, Mr.
Chairman. But it has been interesting. I have heard a lot of
discussion this morning about the respective roles of the three
branches of government here. Most of the discussion about the
two other of branches of government beyond the executive
branch, that is the legislative branch and the judicial branch,
have come from the members of this Committee.
One of the things that I find disturbing about this
discussion this morning, not the Committee's participation in
it but the Department's, is the degree to which you have been
told by the Department of Homeland Security, ``trust us; we can
handle all of this powerful technology, and we will handle it
in a manner that is consistent with our principles and
consistent''--they haven't even said consistent with the laws,
but I suppose that is implied.
I guess I am from the Ronald Reagan school here, trust but
verify. You need to verify that in fact this technology will
not be misused. And one way in which you can verify that is to
establish a clear legal framework for how this technology can
in fact be used. As Mrs. Harman said earlier, the capabilities
here are extraordinary. They go far beyond what the human eye
can process. These are very powerful technologies, everything
from thermal imaging that you discussed a little bit this
morning, to infrared, to ultrawide band. We can tick them all
off. But the point is, these are extraordinarily powerful
technologies, and they go well beyond what you and I could see
if we happened, for example, to be in a helicopter. We need to
have laws that make it clear how these technologies can be
trained inward on the American people.
Now, there is a very good starting base for all this, and
it has been referenced here this morning, and that is Posse
Comitatus. In my written testimony, we discuss this in greater
length, and with the Committee's permission, we will make
available to you a memorandum from our legal counsel on the
applicability of Posse Comitatus here. But it is important to
remember what the basic principle of the Posse Comitatus and
the ensuing Federal statutes was. The notion that military is
not to be trained on the American public; it is for our
National defense. It is not to be used for law enforcement
purposes. These are the Department of Defense satellites. These
offices are within the Department of Defense. This is the
military. And we need to be very careful that Posse Comitatus
and that principle that we not use the military we have trained
on the American public; these are not folks who are trained or
capable in protecting the rights of Americans. That is why we
have set them apart and said, you protect us from foreign
enemies, but we do not use you for domestic law enforcement. So
I think Posse Comitatus raises important questions.
We have four recommendations for the Committee which I will
just highlight now. The first is that Congress should demand
and the Department of Homeland Security should impose a
moratorium on the domestic use of these satellites and
enactment of this program. The moratorium should not be lifted
until the Congress receives answers to the key questions that
you have already begun to ask and the many other questions that
will arise as you learn more details. But that moratorium is
extraordinarily important. There is no hurry here. You have
heard, if it is necessary to use this, for example, to track a
hurricane or even to look at another natural disaster, there is
already sufficient authority for that.
Secondly, Congress should not authorize the enactment of
this program before enacting statutory checks and balances to
ensure not only the proper oversight of this program but that
the potentially enormously powerful surveillance tools that are
at play here be used properly. This measure should include
rules for when domestic satellite use is permissible and be
combined with judicial oversight.
Lastly, the Congress should strengthen and make truly
independent the chief privacy officer and civil rights officers
of the Department of Homeland Security. As Representative
Thompson pointed out in his letter to Secretary Chertoff, those
bodies, those offices appear to have been marginalized through
this process. I think this morning's testimony made that clear
as well. It is possible to give these bodies true independent
authority where they report equally to the Congress as they do
to the Secretary of their agencies, that it is possible to get
beyond a discussion which is purely internal to the agency to
have those officers report to you, report to the American
public, and make sure that our civil liberties and privacy is
in fact being protected.
With that I will take your questions. Thank you for your
indulgence.
[The statement of Mr. Steinhardt follows:]
Prepared Statement of Barry Steinhardt
Summary of Recommendations
1. Congress should demand, and DHS should impose, a moratorium
on the enactment of this program. The moratorium should not be
lifted unless Congress receives answers to the key questions
outlined above and raised by the Chair and Congressman Markey.
2. The moratorium should not be lifted until Congress
authorizes it.
3. Congress should not authorize the enactment of this program
before enacting statutory checks and balances to ensure the
proper oversight of this potentially enormously powerful
surveillance tool. Those measures should include clear rules
for when domestic satellite use is permissible combined with
judicial oversight of such use.
4. Congress should also strengthen and make truly independent
the Chief Privacy Officer of the Department of Homeland
Security, which, as Rep. Thompson pointed out in his letter to
Secretary Chertoff, appears to have been marginalized by the
department in the course of planning this initiative. Congress
should also institute similar independent privacy officers for
other arms of our national security establishment.
----------------------------------------------------------------------
--------
My name is Barry Steinhardt and I am the director of the Technology
and Liberty Program at the American Civil Liberties Union (ACLU). The
ACLU is a nationwide, non-partisan organization with nearly 500,000
members dedicated to protecting the individual liberties and freedoms
guaranteed in the Constitution and laws of the United States. I
appreciate the opportunity to testify about the privacy and civil
liberties implications of domestic spy satellites on behalf of the ACLU
before the House Committee on Homeland Security.
A surveillance society?
Government satellite technology is representative of a larger trend
that has been underway in the United States: the seemingly inexorable
drift toward a surveillance society.
The explosion of computers, cameras, sensors, wireless
communication, GPS, biometrics, and other technologies in just the last
10 years is feeding what can be described as a surveillance monster
that is growing silently in our midst. Scarcely a month goes by in
which we don't read about some new high-tech method for invading
privacy, from face recognition to implantable microchips, data-mining
to DNA chips, electronic identity systems, access passes that record
our comings and goings, and even plans for RFID radio computer chips in
our clothing and other consumer goods. The fact is, there are no longer
any technical barriers to the creation of the surveillance society.
While the technological bars are falling away, we should be
strengthening the laws and institutions that protect against abuse.
Unfortunately, even as this surveillance monster grows in power, we
are weakening the legal chains that keep it from trampling our privacy.
We should be responding to intrusive new technologies by building
stronger restraints to protect our privacy; instead, we are doing the
opposite--loosening regulations on government surveillance, watching
passively as private surveillance grows unchecked, and contemplating
the introduction of tremendously powerful new surveillance
infrastructures that will tie all this information together. (The ACLU
has written a report on this subject, entitled Bigger Monster, Weaker
Chains: The Growth of an American Surveillance Society, which is
available on our Web site at www.aclu.org/privacy.)
Given this larger context in which the plans for domestic
deployment of our spy satellites are being made, several conclusions
are clear:
This step is part of a trend of turning our nation's
surveillance capabilities inward upon our own population.
If spy satellites are to be deployed domestically, it
is vital that the most rigorous checks and balances and
oversight mechanisms be put in place.
There is much that we do not know about our nation's
satellite surveillance capabilities.
A moratorium should be placed on this program until
Congress receives answers to the key questions about the
program, enacts far-seeing statutory protections against its
misuse, and explicitly authorizes the program.
The government's use of military spy satellites to monitor its own
people represents another large step toward a surveillance society. Our
response--and especially the Congressional response--to this new
technology will serve as a test case for how wisely we handle the
introduction of a powerful new surveillance technology by the
government.
Chairman Thompson and the Committee have taken an important first
step in calling this hearing. But other steps must be taken before this
program is allowed to go into effect.
There is much that we do not know about this classified system of
spy satellites that was designed for military and foreign intelligence
purposes. One fact seems plain:
The satellites have capabilities that far exceed those that are in
commercial use.
They have far better resolution. They can see much
more clearly and in greater detail.
While perhaps not as nimble as they have been
portrayed in popular entertainment like 24 or Enemy of the
State, they apparently do have advanced targeting capabilities.
They can and do see far more than the human eye. There
is much we do not know about their ability to pierce opaque
objects, but there is every reason to believe they have some
(and perhaps substantial) capacity to do exactly that with the
power to convey information about how Americans live and work.
The military and the intelligence community are at the
cutting edge of technological change. The satellites are only
going to grow more powerful and capable and change will occur
quickly.
The Congress needs to act before our military satellites are
deployed domestically. You must act before they are turned on our own
people.
It is vital that the most rigorous checks and balances and
oversight mechanisms be put in place. The domestic use of spy
satellites represents a potential monster in the making, and we need to
put some chains on this beast before it grows into something we cannot
control.
Our laws aren't strong enough
The Department of Defense (``DoD'') and Department of Homeland
Security (``DHS'') have strongly implied in media reports that there is
no legal guidance available to them regarding the use of spy
satellites. Nothing could be further from the truth. Congress has
thought long and carefully about this issue. Beginning in 1981 and
steadily updated over the subsequent two and a half decades, Congress
has passed detailed statutory guidance as to how the military is to act
when involved with civilian law enforcement. Currently embodied by
Title 10 Sections 371 through 382 of the U.S. Code and military
regulations such as DoD Directive 5525.5, federal law controls
everything from the use of military equipment and facilities to
emergency situations like those involving weapons of mass destruction.
Military involvement in civilian law enforcement is something that
Americans have always regarded with deep unease and the Posse Comitatus
Act reflects those concerns. When Congress updated the Posse Comitatus
Act it did so with careful deliberation. Authorizations for military
involvement were limited, originally only allowing the military to
operate directly in one area: suppression of the drug trade at the
border. Congress generally limited the military to indirect
assistance--loaning equipment and training civilian police. Direct
action by the military could only be undertaken outside the United
States.
These laws have been updated over the years, but the basic
prohibitions (currently embodied in 10 USC 374) have remained intact:
direct assistance by the military is permitted only for a limited
number of crimes, and monitoring of individuals is largely limited to
the area outside the continental United States. DoD and DHS simply
cannot be allow to step in and pretend that none of these rules apply
and that this substantial body of law does not exist.
While there is substantial law to be applied in this situation, it
may not be sufficient to contend with the new reality of military spy
technology stationed miles above the earth, rather than soldiers with
their boots on the ground.
Unfortunately, given uncertainties about the precise technical
capabilities of the spy satellites and the applicability of the Posse
Comitatus Act in this context, Congress cannot regard the act as a
reliable legal bulwark against the abuse of satellite technology. In
addition, it is certainly conceivable that a domestic law enforcement
agency could in the future launch its own spy satellite, or that one of
the spy satellite agencies could be transferred out of the Pentagon and
into a civilian branch of government. In either of those cases, Posse
Comitatus would lose all relevance--and yet it would still be crucial
that the use of spy satellites be subject to checks and balances.
In any case, permitting domestic spying by the military using
powerful high-technology spy satellites certainly runs contrary to the
spirit of the act and the concerns that prompted its passage: the fact
that the might of the military is a dangerous thing in a democracy--a
tiger in our midst--and must be carefully bounded and restricted in
light of the experience of so many societies throughout history where
the military has become a political force with power that comes not
from the ballot box but from the barrel of a gun--or the lens of a
camera.
Aside from the Posse Comitatus Act, another apparent restriction on
the use of satellites domestically is the U.S. Supreme Court decision
Kyllo v. United States, in which Justice Antonin Scalia, writing for
the majority, found that police could not peer inside a private home
using a thermal imaging device without a warrant.\1\ That ruling should
prevent some hypothetical uses of satellites, such as the scanning of
entire neighborhoods for the presence of heat sources.
---------------------------------------------------------------------------
\1\ 533 U.S. 27 (2001)
The need for oversight
Of course, without proper checks and balances there is no guarantee
that appropriate limits would be observed. Whenever we contemplate the
introduction of tremendously powerful new technologies into our
domestic arena, our current generation and the current Congress needs
to think like Founding Fathers, and Mothers. It was not clear in 1776
what the threats to freedom and democracy would be as the new nation
developed, but the Founders were wise enough to put in place a robust
system of checks and balances that has withstood the full range of
human folly and perfidy for over 200 years. When it comes to spy
satellite technology, we may be living in the equivalent of the year
1789 right now. Put another way, we may be looking at a potential
monster is still in its infancy. And if this technology is going to be
permitted to be turned inward upon the American people, we need
absolute certainty we have the right kind of restraints in place to
ensure that, as it grows and evolves in ways we cannot predict, it will
not trample on Americans' privacy or other rights.
It is not simply a matter of whether we believe rogue agencies will
flout the law (though in the absence of oversight that would certainly
be a possibility over time). Often, it is not clear what the law says,
and the issue is whether that will be decided in secret or hashed out
in public. For example, take the Supreme Court's Kyllo ruling against
thermal imaging inside a home. When satellite use includes non-visible
spectrum technologies, questions must inevitably arise about the
interpretation and limits of that ruling and how it applies to specific
uses. For example, scientists use satellite images outside of the
visible spectrum to study the earth and environment; that would not
seem to be a violation. But it is not clear where the boundary between
that application and the one struck down in Kyllo would lie.
The question of oversight is partly the question of who gets to
decide such questions and make such interpretations. If satellite
surveillance is permitted to take place completely within the shadows,
then those interpretive decisions will be made unilaterally by the
military itself, and will almost certainly be made in a manner that is
as generous as possible to the military.
We believe that the first step in imposing the needed oversight
over this program is for a moratorium to be placed on its commencement.
The second step is for Congress to ask all the key questions that need
to be asked in constructing proper systems of oversight of this
program--and for answers to be provided by the National Reconnaissance
Agency, the National Geospatial-Intelligence Agency (formerly the
National Imagery and Mapping Agency), the Department of Homeland
Security, or whatever other agency might be appropriate.
Only with the answers to those key questions can Congress begin the
task of writing legislation to impose checks and balances on this
program, and only with the passage of such legislation should Congress
authorize the start of this program.
Key questions for Congress to ask
Two members--Congressmen Thompson, the chair of this committee, and
Rep. Edward J. Markey, a member of this committee--deserve our thanks
for raising the right questions and beginning the process of vigorous
oversight.
Chairman Thompson has done so not only by calling this hearing, but
also through his August 22 letter to Homeland Security Secretary
Michael Chertoff (attached for reference). In that letter, Rep.
Thompson requests regular briefings on the status of the project, and
expresses well-deserved dismay at DHS's decision to launch a program
such as this without making use of DHS's own Chief Privacy Officer and
Officer for Civil Rights and Civil Liberties, and the president's
Privacy and Civil Liberties Oversight Board.
We share Mr. Thompson's concerns; the failure of the government to
avail itself of even those weak oversight institutions that now exist
does not bode well for how oversight will be conducted over this
program by the government in the absence of more serious oversight
mechanisms enacted into law. It also serves as a reminder of how
important it is that true checks and balances include truly independent
countervailing institutions that cannot simply be written out of the
process at will.
A good start to Congressional oversight of this program has also
been provided by Rep. Markey in his capacity as Chair of the
Subcommittee on Telecommunications and the Internet of the House Energy
and Commerce Committee. In his August 16 letter to Mr. Chertoff
(attached), sought the answers to a number of vital questions about
this program, including:
Privacy and Civil Liberties. What DHS has done to
ensure that the program would not violate privacy? In
particular, what current policies and procedures govern the
domestic use of satellites? Have inadequacies been found in
those processes? Have or will new policies be developed before
the program is launched? Will any agencies retain any of the
output from spy satellites after it has been evaluated? What
privacy and security safeguards will be used for the storage of
the information? How will the Department handle complaints from
individuals subject to surveillance under this program?
Legality. Has DHS conducted an assessment of the
legality of the program?
Science. Might the surveillance efforts erode the
current scientific mission of the satellite program?
Commercial alternatives. Why has DHS not turned to
commercial satellite providers to meet the objectives it is
seeking with this program?
All of those questions, like those posed by Rep. Thompson, must be
answered before this program can be allowed to go into effect. In
addition, I would like to add several more questions that we believe
Congress must obtain answers to.
What are the capabilities of today's spy satellites?
The striking thing about our spy satellites is just how much we do
not know about them. And it's difficult to draw conclusions about the
domestic use of spy satellites when we don't know what they're capable
of. In order to craft the right restraints, we need to know just what
this monster looks like--and how it is likely to grow.
For example, we do not even know the answer to perhaps the most
basic question: what resolution they are capable of. We know Google can
go to half a meter, and experts outside the intelligence community say
that government satellites exceed that. But, we do not know by how
much.
Government satellite images presumably differ in several ways from
publicly available online images provided by Google, Microsoft and
other Web providers. Online images are merely snapshots taken at most
once every few months. Spy satellites may have or gain the capability
of producing live, moving images like that from a video camera.
Satellites may also be capable of sweeping through much greater
geographical areas, and/or of quickly moving their lenses to examine a
particular spot within a much greater area at a moment's notice. And
they also have capabilities such as radar and infrared imaging. And of
course, they can observe ground activities silently and invisibly.
We do not know what they can do in terms of penetrating roofs or
other structures, live monitoring, the scanning of large geographical
areas, the use of artificial intelligence to guide imaging, or other
capabilities that we might not even think of. Without knowing the
answers to such questions, we cannot even begin to evaluate their
potential threat to our privacy.
There is a lot of discussion and speculation about this topic on
the Internet and elsewhere, and many experts have ideas of what the
limits of this technology are. Undoubtedly, many will emphasize those
limits to you in trying to downplay the privacy threat of this
technology.
But Americans have the right not just to be free of secret
government spying of their innocent activities, but also to have
confidence that they are not susceptible to the constant possibility of
being invisibly observed. So in our view the government must completely
declassify and disclose publicly the full extent of the technological
capabilities of any satellites that will be aimed at the American
people, and you, Congress, must think like Founding Fathers and
institute checks and balances that would be strong enough to protect
Americans' privacy even in the face of every gee-whiz satellite
capability that Hollywood has ever imagined.
What might spy satellites be capable of in the future?
The Congress also needs to know how satellite technology is likely
to develop in coming decades given how rapidly technology is advancing.
A reasonable forecast of future progress might be made based on factors
such as:
The continuing exponential growth in computing power
and data transfer rates
The similar rapid growth in the power of digital
imaging that we have all seen in the prices and capabilities of
consumer digital cameras
The continuing development of imaging technologies
outside the visual spectrum, such as infrared, ultra-wideband,
various kinds of radar, etc.
The possible solution to research problems that are
currently being worked upon.
The amount of resources that are likely to be devoted
to the development of our spy satellite technology in coming
years
Of course a wise policymaker will institute checks and balances
that account not only for reasonably foreseeable developments, but also
the possibility for the sudden emergence of new inventions that are
today completely unanticipated.
Just what uses does our security establishment envision putting these
new satellites to?
Are there really serious advantages that spy satellites can provide
to police and Homeland Security agencies that cannot be provided by
commercial satellite images of the type available on the Internet or
elsewhere? If so, what are those uses? Are the advantages provided by
this program substantial enough to counterbalance its threat to our
privacy? Or is this just another example of an arm of our security
establishment seeking to find new missions and new reasons for being in
order to expand its budgets and bureaucratic reach? Or is law
enforcement being seduced by the siren call (to which many of us are
susceptible) of really cool toys?
If this new program does not actually show substantial promise in
making people safer, the matter should end there. There is no need to
engage in detailed balancing tests or evaluations of a program's effect
on privacy if it is not going to increase security.
Recommendations
We recommend 4 basic steps in response to this situation.
1. Congress should demand, and DHS should impose, a moratorium
on the enactment of this program. The moratorium should not be
lifted unless Congress receives answers to the key questions
outlined above and raised by the Chair and Congressman Markey.
2. The moratorium should not be lifted until Congress
authorizes it.
3. Congress should not authorize the enactment of this program
before enacting statutory checks and balances to ensure the
proper oversight of this potentially enormously powerful
surveillance tool. Those measures should include clear rules
for when domestic satellite use is permissible combined with
judicial oversight of such use.
4. Congress should also strengthen and make truly independent
the Chief Privacy Officer of the Department of Homeland
Security, which, as Rep. Thompson pointed out in his letter to
Secretary Chertoff, appears to have been marginalized by the
department in the course of planning this initiative. Congress
should also institute similar independent privacy officers for
other arms of our national security establishment.
Satellites are but one of many powerful new technologies that are
entering our lives at this exciting point in our history. Many of those
new technologies promise wonderful new innovations and conveniences-but
many, in the absence of due concern and care over their effect on
privacy, and in the absence of strong privacy regulations, threaten to
become an out-of-control monster that moves us closer than ever to a
genuine surveillance society. Congress needs to craft sufficiently
strong restraints on this program to ensure that it does not go out of
control--to protect Americans against the potential for unacceptable
uses of satellite surveillance. And it should treat military spy
satellites as a test case for how other technologies should be handled,
ideally backed up by an overarching privacy law that will create more
clarity and stability of expectations for Americans living in an era of
constant change.
Chairman Thompson. Thank you very much.
I would now yield 5 minutes to Ms. Graves for summation of
her testimony.
STATEMENT OF LISA GRAVES, DEPUTY DIRECTOR, CENTER FOR NATIONAL
SECURITY STUDIES
Ms. Graves. Thank you, Mr. Chairman. We appreciate very
much the invitation to be here. On behalf of the Center for
National Security Studies and my partner, Kate Martin, we
appreciate very much the opportunity to testify today about
these very important matters. I am going to dispense with the
statement that I prepared because I found the testimony this
morning so astonishing that I would like to respond to some of
the points made. And, in addition, I would like to associate
myself with the remarks of my colleague over here. I thought
those were very important observations.
The Center for National Security Studies stands by our
statement about our grave concerns about the proposed activity,
whether it is down the stream or the present proposed activity.
Calling the potential unilateral deployment by the executive
branch of these extraordinary surveillance powers on the
homeland domestically is a dramatic change in the law, and we
do think that it is like Big Brother in the Sky.
Now, I understand that there is classified information
about the range of this technology, about the scope of it. Let
me just be clear about our understanding from the public
records. There are assertions that the current resolution of
even the imaging satellites is between 0.5 meters and a meter.
In essence, for things that are 3 feet across, 3 feet wide. But
that is in essence the commercial technology right now. The
current estimates in the public domain about the true
possibilities of this surveillance are that it is within the
inches range of its resolution. That is in the public domain of
that speculation. And that actually informs in some way this
new desire to implement this new technology, because it is now
about people, about being able to monitor people.
So when the Department of Homeland Security says, don't
worry, we can't tell if you need a hair cut, I would say, yet.
They are still looking at people. The purpose of this, the
examples highlighted in this so-called Blue Ribbon Commission
about how they would like to use this, are directed at people.
So I hope you won't be misled unintentionally about the scope
of this authority. But let me just add a few additional things.
I was astonished by the assertions today that no law needs
to be changed to accomplish this. Let me just refer you to the
record that was before the House Judiciary Committee in 1981
when Congress, not the executive branch, when Congress
considered whether to allow the military to be involved in the
enforcement of drug laws extraterritorially and at the border.
This was the record.
Before Congress at that hearing there were opinion after
opinion of legal opinions of the Office of Legal Counsel about
their understanding of the scope of Posse Comitatus and whether
it would reach or not reach the activity, the specific activity
proposed, versus this far-reaching Federal, State, local,
tribal, civil, criminal application proposed to be begun on
October 1st.
We know more about what William Rehnquist and the Nixon
administration thought about the scope of Posse Comitatus than
we do about this administration. And we know from other
sources, including the torture memos, that this administration
has taken a very expansive view of its authority domestically
in a wide range of areas. And, in fact, according to the
torture memo there is a memo that was written by John Yoo in
which he asserts that Posse Comitatus generally prohibits the
use of the Armed Forces for law enforcement, absent
constitutional or statutory authority to do so.
Now, I would hesitate to associate myself with the comments
or legal views of John Yoo. But if John Yoo has a memo out
there, which we can provide you the full site, I think it is in
my written testimony, you should have that memo and you should
have any subsequent memos. You are entitled to those memos.
This body is entitled to those memos. There is ample precedence
from the Reagan administration for getting those memos. You
should have the general counsel. But you shouldn't just have
all assurances. You should have this in writing. And, more than
that, the American people should have this in writing. We are
entitled to this as a matter of our democracy.
Obviously, there are things we can't know in terms of some
of the specifics of the particular operations or sources or
methods of those operations. But the fact of the matter is that
there are fundamental constitutional principles at stake and
statutory principles at stake.
The suggestions that were made by the panel before us that
this is useful in disasters, that this is useful in hurricanes,
what they didn't tell you was that those are already exceptions
that are long recognized in the law. This is not about the use
of this technology in hurricanes or disasters. It is about the
use of this technology for law enforcement purposes. And I
referred in my testimony to the lengthy report of Professor
Pyle who goes through why, from a constitutional perspective,
it is essential that it not just be about having the military
arrest people. The limitations on military surveillance,
technology being deployed domestically are not just about that
sort of really direct intervention law enforcement; it is much
broader than that as part of our constitutional system. And
there is good reason for that, and let me just give you two.
One is, as Professor Pyle documents, and the Center of Sam
Ervin also documented, the use, the direction of the military
toward the collection of information about Americans raises
substantial civil liberties concerns. As Senator Ervin said
after his lengthy review of this, after a simple request, a
request against the capacity of the Defense Department, that
began with a simple request to help the Defense Department keep
order, the Defense Department obtained files and created files
on over 100,000 people, including Members of Congress.
And the second point, let me conclude with this, is to say
the second reason why this is so important is because public
trust is essential for our national security. Public trust has
been eroded by the unilateral actions of this administration
time and time again. The public press is enhanced by the direct
full intervention of this Committee of Congress in these
important matters of our democracy, and public press is
enhanced by the public's involvement in those debates. And so
we would urge, along with the ACLU, that this program not be
permitted to go forward as planned on October 1, and it should
not go forward until it is fully investigated in a series of
lengthy examinations by this committee and other committees
examining the scope and rights of the American people.
[The statement of Ms. Graves follows:]
Prepared Statement of Lisa Graves
Chairman Thompson, Ranking Member King, and distinguished Members
of the Committee on Homeland Security of the United States House of
Representatives, we thank you for scheduling this full committee
hearing so quickly to examine the administration's announced deployment
of spy satellites to surveil Americans in the continental United
States. The Center for National Security Studies appreciates the
opportunity to testify about our grave concerns regarding this unwise
and proposal made unilaterally and containing no checks against abuse.
The Center was founded over 30 years ago to help protect civil
liberties and human rights against erosion by claims of national
security, in the aftermath of the first wave of disclosures to Congress
regarding extensive, secret military and civilian government
surveillance of Americans in this country.
Kate Martin, the Center's director, and I work closely on
surveillance issues, and the types of military surveillance of the
civilian population first disclosed in news articles during the August
recess pose significant threats to our constitutional system and civil
liberties. The administration continues to be tone deaf on matters of
civil liberties, with all due respect to my colleagues on the first
panel--their comments are an after-thought, a sound bite. As the
Chairman mentioned in his letter, this satellite deployment was
basically a ``fait accompli'' by the time it got to the agency privacy
designees this spring.
At the outset, I would like to raise some questions and try to help
clarify the scope of the surveillance at issue today. I will then
discuss core constitutional and legal principles that call into
question the extraordinary surveillance activities proposed. I will
conclude by describing the need for more oversight and proposing some
solutions.
I. Civil Liberties and Privacy Concerns Raised by the Civil
Applications Committee's Report.
In May 2005, the Director of National Intelligence commissioned a
Civil Applications Committee Blue Ribbon Study, which was completed in
September 2005. Several of the Committee's recommendations, including
the creation of the Domestic Applications Office in the ODNI have
apparently been adopted. The domestic deployment of military satellites
is also apparently the result of these recommendations. However, it is
not known what other actions have been taken in response to these
recommendations. It is important to understand the breadth, scope and
danger of the recommendations.
While the deployment of military satellites to monitor U.S.
civilians has been the focal point of the press on this breaking story,
the actual scope of Intelligence Community (IC) powers that could be
deployed is broader than that, including ``national satellite sensors;
technical collection capabilities (archival, current & future) of the
DoD; airborne sensors; NSA worldwide assets; military and other
``MASINT'' sensors; and sophisticated exploitation/analytic
capabilities.'' Civil Applications Committee's Report (CACR), at p. 8.
MASINT, which is the acronym for ``Measurement And Signatures
Intelligence,'' describes technologies that ``exploit fundamental
physical properties of objects of interest'' and techniques that
include advanced radar, electro-optical sensors, infrared (including
spectral) sensors, geophysical measures such as acoustics, and
materials sensing, processing, and exploitation systems. MASINT is
distinct from other techniques averred to in the report such as
``imaging'' (photography, both still photography and real-time video-
type recording) and signals intelligence (SIGINT), which includes
electronic surveillance, commonly called eavesdropping or wiretapping.
While this list might sound like Big Brother incarnate, it might give
some Americans comfort to know that these are the capabilities that
have been created to protect us against foreign enemies. It should be
obvious, however, that deploying these extraordinary powers against
people in the U.S. would fundamentally alter the relationship between
the government and the governed. Calling this ``Big brother in the
sky'' is modest given the array of array that might be available multi-
headed, medusa-like powers to monitor Americans encompassed by this
array of arrays.
The Committee concluded that there is ``an urgent need for action
because opportunities to better protect the nation are being missed,''
a finding contradicted later in the same report: ``During the course of
the study no one said they were failing in their mission due to lack of
access to IC capabilities. There was no `Burning Bridge' identified by
the participating agencies and stakeholders.'' Compare CACR p.4 with
id. p. 10 (emphasis added). To be plain, the question is whether this
blurring of the lines between civilian and military activities is wise
and prudent. The report has a view on that as well: while law
enforcement has ``traditionally focused on arrest and prosecution and
the IC on disruption and prevention. These mission foci are blurring''
and this blurring should be considered a `` 'feature' as opposed to a
`flaw.' '' Id. p. 12.
The report also casts a critical eye toward civil liberties,
asserting that the protection of ``individual civil liberties'' and
protection of sources and methods ``are the predominant concerns'' in
the ``risk-averse'' environment. Id. p. 10. It then sets up a decision-
making process about deploying IC technology domestically in which the
protection of civil liberties in just one of ten factors. The report
then proposes ``fast-tracking'' consideration and decisions on such
legal concerns. Id. p. 18. It is striking that Congress is not
mentioned anywhere in the process for flagging legal concerns and
deliberating about how to resolve ``issues on the boundary or not
covered by policy.''
While the report contends that a ``strict set of legal and
protection of civil liberties guidelines would be followed,'' such
secret guidelines could be changed at the direction of the executive or
the whim of a zealous attorney at OLC, such as a John Yoo. That is
precious little protection. In fact, the report relies upon the kind of
now-discredited parsing of words engaged in by the Office of Legal
Counsel in the first term of this administration. For example, one of
the reasons why the report supports encouraging the U.S. Marshals
Service to use IC technology is that because their job is to execute
warrants by apprehending fugitives there is ``a very low probability
the IC's involvement would be subject to a judicial proceeding,'' a
kind of don't ask-don't tell/win-win situation according to the
operating ``ethos'' of the report. See id. at p. 24.
Even when reading legal precedents, the report puts its thumb on
the scale of increasing surveillance of the American people, by
providing a roadmap for activities that proponents would likely argue
are permissible, if the government took more of a ``risk management''
rather than ``risk-averse'' approach to civil liberties issues:
Warrantless ``aerial searches of private property'';
Warrantless ``use of highly sophisticated mapping
cameras to photograph the interior of a building''; and
Warrantless satellite surveillance of this same kind.
The report does acknowledge that the Supreme Court recently held
that thermal imaging of a residence without a warrant was unlawful. See
Kyllo v. United States, 533 U.S. 27 (2001). However, the report notes
that there is ``no clear authoritative guidance issued on the impact''
of this decision on the use of domestic MASINT.' CACR at p. 30. Despite
this decision that post-dates other decisions relating to aerial
searches, the report goes on to justify expansion by claiming that the
Congress ``did not substantiate the allegations of the illegal use'' of
photographic sensors to image domestic areas, hardly a ringing
endorsement of doing so now. See id. The report is also critical of the
``cultural aversion toward collection of domestic imagery based on
concerns involving the potential of congressional oversight sanctions
centering around 4th Amendment concerns.'' Id. at 32.
The report credits the tragic events of 9/11 and the ``global war
on terror'' with creating a better environment for domestic expansion
of these authorities. And, the report suggests that simply having a
Privacy and Civil Liberties Oversight Board is sufficient to ensure
that Americans' privacy is being protected. The actual report of the
PCLOB earlier this year demonstrated far from model oversight--the
report was basically a rubber-stamp of White House initiatives. The
White House's editing of the report led in part to the resignation of
the only Democratic appointee of the five-member board. (Subjecting the
board members to Senate confirmation, as the 9-11 implementation bill
did, is unlikely to change the make-up of the board until the end of
the next presidential term.) This utterly inadequate Executive Branch
``check'' is no substitute for robust congressional oversight and
judicial review to protect the Fourth and First Amendment rights of
Americans. To the contrary, as the Committee recognizes, the PCLOB can
be enlisted to help ratify, the domestic use of IC capabilities. See
id. pp. 31--32 & n.11.
It is also quite worrisome that the report recommends revising
Executive Order 12333 that governs U.S. intelligence activities ``to
permit as unfettered an operational environment for the collection ,
exploitation, and dissemination as is reasonably possible'' of domestic
intelligence activities. See id. at p. 31 (emphasis added). We are also
concerned that the report proposes a way around U.S. person rules by
adding unique ID numbers to information derived through foreign
intelligence electronic surveillance to make it easier to know more
about subjects without their names attached. Id. p. 41. Lest any Member
believe this issue is distinct from the disastrous changes in the law
rammed through Congress before August vacation, it is clear that
surveillance of Americans' communications is included in the report's
recommendations for expanding domestic applications of satellite and
other IC technologies. Yet it seems highly likely that there has been
no forthright or comprehensive briefing of Congress on how this issues
impact each other; certainly there has been no public debate to
evaluate the potentially severe impact on the privacy rights of
Americans.
While asserting the need to abide by ``the rule of law,'' the
report concludes that many rights ``have now been abridged at least in
practice if not in law.'' Id. at p.38. The defense contractors call
this the ``new normal'' and note that there is a whole body of
``Presidential memoranda and executive branch decisions that direct
certain actions and events that are germane,'' documents that it is
highly likely the congressional branch, charged with writing the law--
in contrast to the executive branch that is charged with executing the
law--has likely never even seen. See id. p. 39. The report concludes by
positing a very troubling, Cheney-esque point of view, claiming that
the Church and Pike Committee investigations ``created a hyper-
conservative view of what can be done.'' See id. at p. 42. It
recommends that overseers should not look for ``black and white''
distinctions but instead ``experimentation'' should be the rule, while
remaining thoughtful about the ``legitimate'' rights of Americans,
whatever those may be. Id. at p. 43. That's a very sunny view, but the
reality is that there is no country in the world where domestic
intelligence collected in secret has not been misused by the government
in power, usually against its political opponents, including the United
States. The long-standing rules and understandings that this report and
the DNI's proposed office seeks to undo would turn back the clock to
the dark days when military surveillance of the American people was the
``new normal,'' but would do so with exponentially better, more
intrusive technology than J. Edgar Hoover ever dreamed of.
II. Constitutional and other Legal Considerations Support Being
``Risk Averse'' to Protect Rights
The proposed expanded surveillance of Americans call to mind the
1998 movie, ``Enemy of the State,'' where Will Smith's character is
tracked by NSA and other government agents via satellite surveillance,
through tiny GPS transmitters, via bank records, and through via
electronic monitoring of domestic conversations and call data without
warrants. It's just a fictional movie, of course, but it is one of the
more recent visual depictions of some of the IC capabilities at issue
here. In response to questions raised at the time of the film's release
about whether the National Reconnaissance Office (NRO), which maintains
the spy satellite network, could ``read the time off your watch'' NRO
spokesman Art Haubold pointed out that, ``legally, his organization is
not allowed to turn its surveillance systems on the United States.'' If
the Domestic Applications Office is allowed to pursue the proposals
made by the Committee, that assurance will no longer be true.
The principle at stake, as stated by the NRO, was that satellite
technologies were not allowed to be turned on the U.S. Now the
administration spokespeople are left with saying don't worry, we won't
be able to ``tell if you need a haircut,'' not the same kind of
assurance at all. To the contrary, it implies the opposite of the
uniform assurances made before this administration--now they might be
watching but can watch you, they just do not yet have the technology to
see everything.
Less than a decade ago, commercial satellites could conduct what is
known as panchromatic electro-optical surveillance with a resolution of
one to .5 meters. According to public accounts, the actual resolution
of military satellite technology four decades ago, in 1967, was one
meter, which means the ability to distinguish objects almost three feet
across. Recall the black and white photos later released regarding the
Cuban missile crisis. There is no doubt that military technology has
made dramatic leaps forward since then and while the true resolution is
secret, public estimates are that the military can create visual images
of much better quality than the commercial applications, in the range
of 10--15 centimeters, or objects up to four inches across. That is why
the Department of Homeland Security can claim there is no worry about
seeing your haircut from space. To which I would add one word: yet.
It's imminent.
What this means is the government will have the capacity to
photograph from satellites or platforms on high not just borders or
buildings or missiles or cars but ordinary people. And there are the
other sensors, infra-red, thermal, audio/greatly amplified hearing
devices and the patented technological capacity to sort through
conversations in a crowded room. There are GPS transmitters, which
Americans rely on for driving directions or in their cell phones and
which the government could easily use to track individuals.
There is only one given in this debate: that technology will
continue to improve. As Bill Gates has remarked, technology will
improve often in ``great leaps over relatively short periods.'' The
resolution of military satellite images and quality of other IC sensors
are only going to get better and better, especially with the amount of
money available for R & D.
The rules for turning military satellites inward on the American
people should not depend on how great the photo resolution and GPS
tracking technology is at the moment. The rule should depend on
principles, what the report disdains as ``black and white
distinctions''. These conservative principles, which the report
criticizes as ``risk averse,'' are the principles that have preserved
our civilian democracy from military control. One principle that has
been the glue that has preserved the compact between the citizens and
the state is that the branch that uses power cannot be the branch that
creates the rules for such use or enforces them. Turning military
satellites and sensors inward on Americans should not be the unilateral
decision of the DNI, or other intelligence officials, or of the
proponents of the untrammeled executive power.
Much has been said over the years about whether the Posse Comitatus
Act applies or does not apply to a given activity. The posse comitatus
statute itself has a bit of a checkered past, as it was passed a decade
after the end of the Civil War in response to complaints by Southerners
against federal troops still policing reconstruction efforts and in
particular the rights of African Americans to vote. The statute makes
it a crime to ``willfully use'' the military ``to execute the laws,''
except in cases ``expressly authorized by the Constitution or Act of
Congress.'' Congress has created several exceptions over the years,
such as emergency situations as with an insurrection or health
quarantine as well as narrowly drawn exceptions for circumstances
involving nuclear weapons or assassination. Other exceptions have been
less well drawn, such as enforcement of federal drug laws, although
that has been confined to the borders.
It is plain that under the terms of the statute Congress can make
exceptions, although it is not plain to us that every exception would
pass constitutional muster. We believe that a new statutory exception
for the deployment of spy satellites to spy on the American people
without any judicial check would not only swallow the rule but would be
unconstitutional. It does not appear, however, that the Executive
Branch is asking for your permission or a statutory exception. It is
instead a ``fait accompli.''
I suspect their arguments are two-fold. First, that so long as they
are not permitting the military to arrest a person they are not
executing the law. (But the military has already taken a citizen and
others into custody inside the United States without charges as ``enemy
combatants.'') This would be a rather narrow interpretation of what it
means to execute the law, especially for an administration that claims
for itself maximum deference in its executive functions. The more
sophisticated argument they might make on this point is that such IC
capabilities would be passive, not directed at executing the law. (Such
an argument might reach back to some lower court decisions stemming
from the particular facts of the massacre at Wounded Knee where a
military officer was reported to have directed law enforcement agents.)
The statute should not be read so narrowly.
On these points I would refer the Committee to the eloquent legal
analysis of Dr. Christopher Pyle. As he demonstrates in his memorandum,
``the primary objective of the Posse Comitatus Act has not been merely
to forbid energetic, aggressive, intrusive assistance, but to forbid
routine assistance as well.'' He presciently observed that ``the
political pressures for information may cause the armed forces to
redefine the `normal course of military operations' so as to re-involve
the military in the surveillance of civilian political activity.'' This
forecast unfortunately came true in the case of the recently abandoned
``TALON database,'' which the Defense Department used to collect
information on innocent Quakers and members of other peaceful religious
groups that have spoken out against the war in Iraq. As Dr. Pyle noted:
During the late 1960s, it was `normal' for the U.S. Army
Intelligence Command to dispatch plainclothes agents to observe
nearly every demonstration in the United States involving 20 or
more persons, to infiltrate domestic political groups, to
maintain huge data banks on dissidents, and to share
information about wholly lawful political activity with
civilian law enforcement agencies, including some with
notorious records for violating First Amendment rights.
Overseas, it was normal to open civilian mail, wiretap American
civilians, and violate confidential communications between
American civilian attorneys and their clients.
(I would ask to make his full statement part of the record, as an
attachment to my testimony.) While some of these specific activities
have since been prohibited, the proposal to deploy satellite and other
technologies involves the same dangers.
I would submit that there are also larger principles at stake than
that particular statute, based on the Constitution's structure of
limited powers. For example, the Constitution means to make the
imposition of martial law the rare exception by barring standing armies
and forbidding the suspension of the writ of habeas corpus except in
rebellion or invasion (and grants that power to Congress, not the
president, in Article I). As Senator Sam Ervin noted: the
``Constitution clearly contemplates that no part of the armed forces
may be used in the United States for any purpose other than the
following: (1) to repel a foreign foe; (2) to quell a domestic
insurrection against the government; or (3) to suppress domestic
violence which the states are unable to suppress without federal aid.''
Senator Ervin conducted a lengthy and thorough investigation of the use
of the armed services to spy on Americans, and I would ask that a
historical article and letter from him regarding military surveillance
be included in the record as an attachment to my testimony. In his
article, Senator Ervin noted that Congress had documented the abuses
that occurred the last time the military was permitted to engage in
domestic surveillance. Among the many examples cited, I would note in
particular the following example from an Army Intelligence unit in
Chicago in the late 1960s and early 1970s:
He described how this unit targeted for surveillance 800
persons in Illinois, collected by overt and covert means
information about them, stored such information in dossiers,
and transmitted some of it to intelligence installations
elsewhere. Among those persons spied upon were Senator Adlai E.
Stevenson, Representative Abner Mikva, and United States
Circuit Judge and former Illinois Governor Otto Kerner, as well
as state and local officers, clergymen, journalists, lawyers,
and contributors to political and social causes.
Senator Ervin also stated that through notes, recordings, and
photography, the dossiers recorded the ``attitudes, aspirations,
thoughts, beliefs, private communications, public utterances'' and
financial information. The stated justifications for some of this
surveillance was predict civil disturbances. In all, ``[m]ore than
100,000 civilians were subjects of surveillance by military
intelligence. . . . Their reports were fed into scores of computers and
data banks across the country. No meeting or demonstration was too
trivial to note; no detail of one's personal life too irrelevant to
record.''
While the military acknowledged its failings and adopted new rules
to prevent such surveillance by individual personnel, Senator Ervin's
warnings from the past about the need for clear rules are again
relevant given the technology now available. History was already
repeating itself in the TALON database and, while we welcome the
announcement of its demise, the potential for mission creep by the
military, with its enormous resources, is still quite dangerous. It is
the nature of the military to take actions on a massive scale, with
individual collectors simply following orders, collecting against
requirements from on high. Indeed, one of the military's strengths is
its massive force and capabilities. But this sledgehammer-like strength
should not be deployed, even or perhaps especially via surveillance,
against the American people as a whole or against selected groups or
individuals here in the U.S., without judicial oversight, in response
to requests by civilian law enforcement agencies at all levels of
government seeking military involvement and assistance in the
enforcement of all kinds of criminal and civil laws.
III. The Need for More Complete Disclosure and More Investigation
into this Matter
Clearly, more investigation is warranted.
Two years ago, the report produced by the non-governmental Civil
Applications Committee recommended establishing a ``Domestic
Applications Committee'' in ODNI to fund and accommodate access to
current Intelligence Community ``collection and processing
capabilities'' as well as to increase funding for R & D, acquisition
and ``Tasking, Collection, Processing, Exploitation, and
Dissemination'' (TCPED). In essence, military contractors studied the
potential to use military resources domestically and agreed that these
military resources should be used for domestic intelligence and
domestic law enforcement with increased funding. I suppose one should
not be surprised by this result.
What should surprise, or at least offend, Congress is that in the
two years the DNI has had this report and on the eve of its
implementation it took the press to discover this revolutionary plan.
It appears that this Committee was not informed that the DNI had begun
to implement this taxpayer-funded study. (Although the administration
told reporters that it had briefed ``key'' members of this Committee,
as well as Appropriations and Intelligence, press also reported that
neither the Chairman nor the Ranking Member of this Committee were
aware of it before it was reported in the news.) There is no public
record to support the conclusion that the DNI consulted with this
Committee before striking a deal in May with the Department of Homeland
Security and its secretary Michael Chertoff, to provide access to
information about people in the U.S. collected via satellites flying
over the U.S. There is no record to indicate that DHS sought advice
from this Committee before entering into the reported Memorandum of
Understanding (MOU) or that the Members of this Committee have seen
this MOU and have a clear understanding of its scope, its intended
effect and its likely unintended consequences.
How many times have Director McConnell or Secretary Chertoff or
their staff been up to Congress in the last four months or two years,
making assurances and claims, without mentioning this massive expansion
of domestic surveillance? How much longer can you continue to rely on
assurances when time and time again Executive Branch officials have
omitted key facts or provided you with carefully selected information
in response to only the precise questions asked. This game of hide and
seek is unbefitting a democracy.
There is also no record to support the conclusion that Congress has
any concrete estimate of how much this might cost or what the
opportunity costs are of directing military satellites toward the
American people, let alone a full and accurate assessment of civil
liberties and privacy concerns, other than what has been presented by
military contractors and political appointees of the Executive Branch.
It is the nature of the Executive Branch to maximize executive power
and discretion, which is why robust checks are essential. We have
witnessed this inherent tendency in overdrive over the past six years
due to the extreme views of Vice President Cheney about inherent,
unlimited power of the president, views that have been adopted and
implemented throughout the Executive Branch. Some of the related OLC
opinions were written by the discredited John Yoo, whose views the
subsequent head of OLC, Jack Goldsmith called ``tendentious,'' ``overly
broad'' and ``legally flawed.'' See Jeffrey Rosen, ``Conscience of a
Conservative,'' The New York Times Magazine (Sept. 9, 2007).
I mention this background because in my observation Congress needs
to establish its own Office of Legal Counsel for purposes of assessing
the scope of authority under the Constitution and statutes, because the
Justice Department's OLC has an institutional bias in favor of the
branch within which it resides. In some ways the Congressional Research
Service fulfills this role, but it has not been given the
responsibilities or credit it deserves to be a counterweight to OLC's
defense of presidential power and diminution of congressional controls,
as evidenced in this recent period. Despite the great flaws in some of
these OLC opinions, they are important markers for what the Executive
Branch thinks it has the power to do. The tradition prior to this
administration was to make almost all of the opinions that relate to
the interpretation of public law public even if redactions were needed.
And, yet, as we sit here today debating whether public statutes, such
as the Posse Comitatus Act preclude the deployment of military
satellites to target or track civilians in the U.S., this Committee
does not have the relevant memos from the administration to assess what
the administration thinks it has the power to do with or without the
consent of Congress. Specifically, the administration apparently
reinterpreted the Posse Comitatus Act, along with several other
statutes in October 2001. As stated in footnote 16 of the OLC August
2002 ``torture memos'':
We recently opined that the Posse Comitatus Act, 18 U.S.C. s.
1385 (1994), which generally prohibits the use of the Armed
Forces for law enforcement purposes absent constitutional or
statutory authority to do so, does not forbid the use of
military force for the military purpose of preventing and
deterring terrorism within the United States. See Memorandum
for Alberto R. Gonzales, Counsel to the President and William
J. Haynes II, General Counsel, Department of Defense, from John
C. Yoo, Deputy Assistant Attorney General and Robert J.
Delahunty, Special Counsel, Office of Legal Counsel, Re:
Authority for the Use of Military Force to Combat Terrorist
Activities within the United States at 15-20 (Oct. 23, 2001).
What does this memo say about using military force or tools, such
as satellites or what is known as ``remote sensing'' data or devices on
these shores? Was the administration's rhetorical argument that the
battlefield is everywhere translated into legal opinions that would
permit the military to electronically surveil Americans without
warrants and seize and ``arrest'' civilians on the general ground of
terrorism prevention, hold them in military brigs and detain them
without trial. These matters are all inter-related and Congress has not
yet gotten to the bottom of what has been wrought, although it has now
begun to do so.
We respectfully request that this Committee begin a comprehensive
review, jointly with the Judiciary and Intelligence Committees, of how
domestic surveillance powers are being used. As former CIA advisor
Suzanne Spaulding has noted:
The inquiry should start with an open question about the design
or efficacy of oversight and accountability mechanisms. The
inquiry should ask first whether some powers should ever be
granted to the government; whether the law or institutional
safeguards can ever be adequate to protect constitutional
government and individual liberties against the kind of power a
government will amass when it harnesses all potential
technological surveillance capabilities.
The proposal to deploy military surveillance powers domestically
only adds to the urgency of the need for a systematic review of
domestic and foreign surveillance powers, as currently deployed and as
proposed by the administration. In the absence of such an examination
and full disclosure to Congress, no new surveillance powers should be
approved and ratified.
We also believe this Committee has a duty to insist on seeing the
Yoo memo and any subsequent memos that attempt to justify domestic use
of military satellites for intelligence gathering in the U.S. related
to terrorism or for other purposes. Has this memo and any later
clarifying memos by Jack Goldsmith or by officials at ODNI or elsewhere
on the application of the posse comitatus or other restraints been
provided to this Committee? If it has been provided, we would ask that
it be made public to the extent possible. We suspect, given this
administration's dubious claims of the need to classify or keep secret
even interpretations of public laws, that the Committee has not
received the Yoo memo or any others we have identified. We do not
think, however, that the Congress should permit the Domestic
Applications Committee to implement recommendations until these and
other key documents are transmitted. Even then the Congress should
examine carefully this dramatic expansion of the use of military
resources in the US homeland against people in the US and withhold
approval if the only case that is made is that it might have some
utility.
The administration seems to be operating under a variant of the
bureaucratic dictum, it is easier to ask for forgiveness than
permission: often they seek neither permission nor forgiveness. They
simply act in secret, violating statutes such as the Foreign
Intelligence Surveillance Act, until their unlawful conduct is leaked
and then they investigate the whistleblowers. They then seek to
legalize what they have done and institutionalize it with Congress'
acquiescence. We are concerned that the administration plans to
implement the domestic satellite spy program with or without the formal
blessing of Congress, although it is possible that this expense is
obscured in some ambiguous line in the so-called black budget.
Congress, however, has some tools in its constitutional toolbox and
should enact a funding rider to prevent any more American taxes from
being spent on the Domestic Applications Committee or the
implementation of the satellite-spying proposal. This House should use
the power of the purse and let the president threaten to veto the
federal budget over this, or the House should at least take steps to
force the president's allies in the Senate, from whatever side of the
aisle they hail, take a vote on the record in favor of spy satellite
surveillance of the American people. Congress should not just let this
proposed activity be implemented without those who support spying on
Americans paying any price. Without such credible action by this
Congress, the next 14--17 months at least will be filled with more
liberty eroding policies being implemented without consequence. Once
implemented, such programs and expenditures can be very difficult to
undo.
IV. Conclusion
Intelligence officers have sometimes described the IC's
capabilities as a ``weapon.'' We believe these incredible powers should
not be trained on the American people. The Center for National Security
Studies stands by its initial fears about the proposed surveillance--it
is big brother in the sky. The military surveillance activity that
could be deployed unilaterally by this administration as proposed
``experimentation'' is nothing short of revolutionary. We call on this
Committee to continue to investigate this proposal and to withhold
funding unless and until full information is received and it is clear
that such capability is necessary and consistent with the Constitution
and the protection of civil liberties. Thank you for considering our
views.
Chairman Thompson. Thank you very much. I thank the
witnesses for their testimony. I now recognize myself for 5
minutes of questioning, and I yield that time to the gentlelady
from California.
Ms. Harman. Mr. Chairman, I thank you for that. I apologize
to you and our members and the witnesses for having to leave in
5 minutes, but I have found this 3 hours extremely useful.
You were all here and heard my rant to the first panel. I
stand by that, but I would now add a few things and ask you a
question.
I like Mr. Steinhardt's idea about a moratorium. I think on
a bipartisan basis this committee is very concerned, and Mr.
Brown's comments could have been any of our comments in terms
of the overreach of executive power into our homes in a way
that we have not permitted. So, I think a moratorium is a good
idea. The Committee will be sending a letter to Mr. Allen later
today requesting all the materials that you have suggested we
get. And, as far as I am concerned, I would like us to do
whatever we can to delay this program proceeding until we have
fully reviewed those materials. There is no intent to delay it
unnecessarily, but we are on the front end of this, an
expansion of the power to look into the activities of Americans
in America, and we have to insist that it fully comply with our
Constitution and our laws. And if the laws are not adequate, we
have to add laws. So that is my first comment.
My second comment is I agree with you on Posse Comitatus;
we didn't get a full answer today. But I think the full answer
is not as easily explained as it was by the couple of witnesses
who tried to address it. They said they are not expert on it.
And I know the history as you do, and I actually worked in the
Senate when Sam Ervin was in the Senate. I am a fossil. So I
remember that, and I remember how careful he was to protect
Americans, and we had better take care again. So that is my
second point.
My third point is that we have been rolled on the Terrorist
Surveillance Program in Congress. That thing was full blown
before I as a member of the Gang of Eight was briefed on its
operations. I was not briefed on the legal underpinnings until
after the President disclosed the existence of the program. And
I could consult a few people and come back to the Gang of Eight
format and insist that we be briefed. But even now, facts are
coming out. And the bottom line is, this is administration
feels free to disregard the law Congress passes in exercising
the President's Commander in Chief authorities. And there has
been a very clear Supreme Court case on that, and it is called
the Steel Seizure case that at least persuades me that the way
they are proceeding is improper.
So since we have been rolled, I intend not to get rolled
again. And this is what I want your comment on. I think, unless
we fully understand what is proposed--and I am not even certain
Mr. Allen in his colleagues fully understand what is being
proposed--and know--and I know Mr. Green feels the same way--
that we have some sort of careful Article 3 court review
mechanism in place, we should just not go here. Just not do it.
Like anyone else, I think we want to find out the plans and
activities of those who would intend to harm us, including
Americans. But if we give up our Constitution and our system of
laws to find out those plans and activities, I think they win.
So that is basically my comment on the philosophical
question of how to proceed. And I have just a minute of time
left, and I do want to respect my time limit here, so please
answer me briefly, if you can.
Ms. Graves. Let me just say, I appreciate very much your
leadership, Congresswoman Harman. You have been a tremendous
leader on these issues from the national security standpoint
and taking due care for our civil liberties.
Our concern echoes yours in that this unilateral activity
basically, it is presented as a fait accompli. It is presented
as they are starting October 1, whether you do anything or not,
unless you do something to try to stop them, basically. And we
think that is entirely the wrong way to proceed in this
democracy. We think it is the wrong way to proceed from a civil
liberties standpoint. And we don't have confidence given the
track record of this department, even with their good
intentions and, with this administration, that they will
actually protect civil liberties. We know they are reviewing to
rewrite Executive Order 12333, and we know that they are
reviewing and have reinterpreted countless laws that we don't
even know about. So we can't trust them and take their word for
it.
Ms. Harman. Thank you.
Mr. Steinhardt. If I could add two points to that. I
entirely agree with Mrs. Harman. There needs to be a time out
here. There needs to be a break in order for the Congress to
step in and make clear what the rules are.
I would just say parenthetically, I didn't regard your
earlier remarks as a rant. I thought they were forceful and
insightful.
Finally, I commend to the Committee an article that
appeared in this morning's Washington Post on page D-3, if my
printout is correct, that discusses how the Department of
Homeland Security has dropped now the use of a large data
mining program some of us have been concerned about known as
ADVISE. And part of the reason they dropped it is not only
really their inability to implement it, but also because they
learned that in fact they had violated the law by using data
involving real live Americans.
Chairman Thompson. Excuse me, Mr. Steinhardt. We are going
to have to go and do a vote. And in deference to the Committee
members who stayed, I am going to ask them to do 2 minutes
starting with Mr. Green.
We heard you. We have already dispatched a letter to the
Department talking about the Advise program and raising a lot
of the concerns in the article.
Mr. Steinhardt. Of course, Mr. Chairman.
Mr. Green. Thank you, Mr. Chairman. And I sincerely thank
you for your vision and your foresight and your willingness to
host this hearing. It is exceedingly important. My comment will
be brief.
This is a technology that is not only omnipresent but also
invisible. We will not know the extent to which it can be
penetrate our privacy without sufficient oversight. The best of
intentions are the means by which the road to a place that none
of us want to go has been paved. I just think, Mr. Chairman,
that we are at the genesis but there are revelations yet to
come, and we are to shape the revelations. Thank you.
Chairman Thompson. Thank you.
Mr. Perlmutter.
Mr. Perlmutter. Thank you, Mr. Chairman. Just a lot of
thoughts based on your testimony, and just kind of a thought
that I had. I had signed on to the impeachment bill of Alberto
Gonzalez, and then I saw the Bourne Ultimatum the next night.
And it made me nervous actually as to the capability and the
capacity of this government to just look in on all of us. And
that was confirmed for me, and it wasn't a government company,
or it was a major corporation. I visited their plant. And the
resolution of the camera that they had in the ceiling, just to
be able to see just a tiny pore on my hand was unbelievable.
So the fears that you all have expressed as to the capacity
of the government, the potential for abuse are things that we
have just got to deal with.
You know, there is a piece of me that, though, thinks that
there may be a proper component for law enforcement, I don't
know all about the Posse Comitatus, but the proper role, so
long as we have procedures in place that respect the rights of
each and every one of us. And we haven't really had a chance to
see if those procedures are in place and that the oversight is
in place. And I am just glad that you two are looking at this.
And hopefully that prior panel, you know, Congresswoman Harman
has been a major supporter of the Intelligence Community, but
she has also been a supporter of each and every one of us
having our rights protected. And hopefully that panel got it,
that this is something that is of major concern to all of us.
And I am with you on the moratorium. Thank you.
Chairman Thompson. Thank you very much. Now, chairman of
the Oversight Committee for the full committee, Mr. Carney.
Mr. Carney. Thank you, Mr. Chairman. I, too, want to
associate myself with the much of what is being said here
today.
Now, I do have a quick question. Do you see from your
perspective a use in satellites as a tool in law enforcement
and protecting society?
Mr. Steinhardt. You know, we are not Lignites; we are not
saying this technology should be smashed and never used. What
we are suggesting is there may be appropriate uses, but the
Congress needs to establish what the procedures are before they
can be used. And they need to be narrowly tailored, and we need
protective rights. Let us do that first before we begin to
understand the technology.
Mr. Carney. Understood.
Ms. Graves. And let me just say that that is the way the
Posse Comitatus Act has proceeded in the past. It is written to
provide for whether there is a constitutional exception, which
I wouldn't say is just unlimited Commander in Chief power. But
a constitutional exception, or statutory exceptions, that those
can be created. Of course, an exceedingly broad statutory
exception could be subject to the constitutional challenge. So
we would obviously urge that Congress really have as much time
as the administration had. They talked this morning about how
extensive and lengthy and thorough their review was either in
the last 3 months or in the preceding year and a half, by
primarily political appointees. Whether it is the privacy
officers or others, you should have at least that amount of
time to unravel this and take a look at these issues. And we
would support the moratorium on that basis as well.
Mr. Carney. Thank you, Mr. Chairman.
Chairman Thompson. Thank you very much. I think my comments
have been echoed in the questioning and comments of the
Committee.
I want to thank the panel for their valuable testimony and
for the members for their questions.
Some of you may have noticed the empty seats there at the
witness table. We had invited two DNI witnesses to testify at
this hearing, and they declined the offer as they didn't want
to be on the same panel as our friends from the ACLU and Center
for National Security Studies. No offense to either one of you,
of course.
As I noted previously, this is a very serious issue, and
one hearing alone will not suffice. I believe additional
hearings and briefings are merited. DHS has promised certain
get-backs to the committee. And, when they are provided, I hope
to hold additional hearings. I have asked Ms. Harman and Mr.
Carney to take the leadership on many of these issues, and I
hope and expect that DNI will participate in those hearings.
In addition, I think that the lack of answers and legality
of the proposed programs require testimony from the general
counsel of both DHS and DNI going forward.
Hearing no further business, the committee hearing stands
adjourned.
[Whereupon, at 2:10 p.m., the committee was adjourned.]
