THE MAGAZINE

Homeland Security: Lost in Space?

By Joseph Straw

If the U.S. Department of Homeland Security (DHS) implements its plan to turn spy satellites on domestic targets in the dual fights against crime and terrorism, the agency will likely face challenges in court just as it has on Capitol Hill, according to the nonpartisan Congressional Research Service (CRS).

The proposed National Applications Office (NAO) would field and facilitate requests from domestic agencies that want visual and sensory data from military-owned surveillance satellites when they pass over the United States. U.S. agencies, primarily those concerned with weather and environmental information, have long received data from spy satellites when possible, but that has been through the Interior Department’s Civil Applications Committee (CAC), which would be replaced by NAO.

DHS asserts that domestic space surveillance is not specifically prohibited; it is uncharted legal territory, both in statute and constitutional law. CRS experts find the issue less clear-cut  than DHS, with some supporting precedent on both sides.

U.S. surveillance satellites, whether their products are used by defense or civilian intelligence agencies, are operated by the Pentagon’s National Reconnaissance Office (NRO). That, says the CRS, raises questions under the 1878 Posse Comitatus Act, which forbids military involvement in civilian domestic law enforcement.

The law is vague, however, on involvement of civilian defense workers in domestic issues. Moreover, notes the CRS, the law was amended in 1981 to allow lending of military equipment to civilian law enforcement. Critics of the NAO plan in Congress, however, argue that the amendment was intended solely for drug interdiction activity.

Bigger questions loom over whether DHS or the FBI could intentionally look down on a suspect individual’s property without a search warrant and whether those agencies could act on information if they spot suspicious or illegal activity.  

Relevant case law deals with illegal activity spotted from police helicopters and the purposeful use of  infrared cameras without a warrant.

In 1986, and again in 1989, for example, the U.S. Supreme Court ruled that police could prosecute suspects for growing marijuana in their yards, after the plants were spotted from police helicopters. Based on earlier precedents, the plants were in plain view from a lawful vantage point, and the authorities had not violated a reasonable expectation of privacy.

But in 2001, the Court struck down a case in which an officer, using a thermal imaging camera, determined that a suspect’s private dwelling, far warmer than surrounding homes, was likely being used to cultivate marijuana. The officer used the information to secure a search warrant, and he was right. But the Court ruled that the initial use of the thermal imaging device amounted to a warrantless search, because the technology employed was not in general public use.

Beyond the inherent rarity of satellites themselves, CRS, like others, noted that the capabilities of today’s spy satellite go well beyond visual or infrared light-based photography to include ground-penetrating radars and sensitive radio detectors. Those technologies could theoretically be used to detect tunnels at the U.S. border or radiological emissions from weapons of mass destruction.

What is clear, CRS says, is that information gleaned from satellite surveillance would likely never be used in criminal prosecution. In any trial’s “discovery” phase, defense attorneys would demand to know how prosecutors got their evidence, requiring that the NRA share classified information on its satellites.

On learning of the NAO plan in 2007, skeptics in Congress stopped short of criticizing the core concept but withheld funding unless the plan underwent a DHS privacy and civil rights assessment and a separate review by the independent Government Accountability Office. Lawmakers received the two internal assessments this spring. Around the same time, NAO started hiring staff.

At least twice in recent years, federal agencies used spy satellites domestically in law enforcement and homeland security efforts. One case was the 2002 sniper shootings that terrorized the Washington, D.C., metropolitan area. In that case, the FBI used CIA applications to view fresh images of the National Capital Region. Then, in 2005, DHS used images to assess damage from Hurricane Katrina.

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