WSJ: More U.S. officials to get spy satellite imagery

by Frank James

As Robert Block reports in The Wall Street Journal today, the list of civilian officials who will be given access to imagery from the nation's military spy satellites is about to get much larger.

As the article reports:

The decision, made three months ago by Director of National Intelligence Michael McConnell, places for the first time some of the U.S.'s most powerful intelligence-gathering tools at the disposal of domestic security officials. The move was authorized in a May 25 memo sent to Homeland Security Secretary Michael Chertoff asking his department to facilitate access to the spy network on behalf of civilian agencies and law enforcement.

Until now, only a handful of federal civilian agencies, such as the National Aeronautics and Space Administration and the U.S. Geological Survey, have had access to the most basic spy-satellite imagery, and only for the purpose of scientific and environmental study.

According to officials, one of the department's first objectives will be to use the network to enhance border security, determine how best to secure critical infrastructure and help emergency responders after natural disasters. Sometime next year, officials will examine how the satellites can aid federal and local law-enforcement agencies, covering both criminal and civil law. The department is still working on determining how it will engage law enforcement officials and what kind of support it will give them.

An intriguing aspect of this decision is it exposes a large gray area in U.S. law related to how far the military can go in assisting civilian law enforcement.

Unlike electronic eavesdropping, which is subject to legislative and some judicial control, this use of spy satellites is largely uncharted territory. Although the courts have permitted warrantless aerial searches of private property by law-enforcement aircraft, there are no cases involving the use of satellite technology.

In recent years, some military experts have questioned whether domestic use of such satellites would violate the Posse Comitatus Act. The act bars the military from engaging in law-enforcement activity inside the U.S., and the satellites were predominantly built for and owned by the Defense Department.

According to Pentagon officials, the government has in the past been able to supply information from spy satellites to federal law-enforcement agencies, but that was done on a case-by-case basis and only with special permission from the president.

Even the architects of the current move are unclear about the legal boundaries. A 2005 study commissioned by the U.S. intelligence community, which recommended granting access to the spy satellites for Homeland Security, noted: "There is little if any policy, guidance or procedures regarding the collection, exploitation and dissemination of domestic MASINT."

MASINT stands for Measurement and Signatures Intelligence, a particular kind of information collected by spy satellites which would for the first time become available to civilian agencies.
According to defense experts, MASINT uses radar, lasers, infrared, electromagnetic data and other technologies to see through cloud cover, forest canopies and even concrete to create images or gather data.

Since, as Block reports, the courts have allowed warrantless searches of private property by aircraft, it would appear that the government could argue that the use of satellites to conduct such searches would be a mere extension of what is already permitted.

But civil libertarians are likely to argue that the extent of what the satellites can "see" using various imaging technologies are much more invasive than what can be gathered by standard aerial surveillance.

As the article says:

The spy satellites are considered by military experts to be more penetrating than civilian ones: They not only take color, as well as black-and-white photos, but can also use different parts of the light spectrum to track human activities, including, for example, traces left by chemical weapons or heat generated by people in a building.

That sort of capability would make the spy satellite technology seem much more akin to the use of the kind of thermal-imaging technology by law enforcement which the Supreme Court struck down as an unreasonable search in Kyllo vs. U.S. in a 5-to-4 decision in 2001.

In that case, the court said federal agents violated the Constitution by using a thermal-imaging device to detect that a suspect was using halide lights in his residence to grow marijuana plants. That decision, of course, came before 9/11.

Given the distrust of the Bush Administration among many lawmakers when it comes to its use of technological eavesdropping in programs like the one the White House has dubbed the Terrorist Surveillance Program, it won't be a surprise if this latest spy-satellite revelation causes significant concerns on Capitol Hill, with public hearings to discuss the nature of this expansion.

The fact that the Homeland Security Department will get to decide who receives access to the imagery is also likely to further set off congressional alarms since the agency hasn't exactly covered itself in glory since its creation in 2003.

Expect to hear a lot more about this.