DHS satellite spy program going forward despite objections
'Ridiculous' to think program doesn't violate Posse Comitatus, ACLU lobbyist tells Raw


Nick Juliano
Published: Thursday October 2, 2008

The Department of Homeland Security has been given the money it needs to begin turning international spy satellites within the country's borders, despite lingering fears about the program's lack of focus and the potential for it to infringe upon Americans' civil liberties.

After more than a year of delay, Congress quietly authorized DHS to begin sharing data gathered by military satellites with civilian and law enforcement agencies. A $634 billion spending bill signed into law earlier this week provides funds for DHS to establish the satellite surveillance program, known as the National Applications Office, without addressing the myriad concerns about NAO privacy and civil liberties protections that had been delaying its implementation.

Supporters of the program claim, according to the Wall Street Journal, that its scope will be limited to "emergency response and scientific needs," but civil liberties advocates and some members of Congress fear the door has been open for the highly classified satellite surveillance program to shift into high gear.

"I'm kinda shocked it got through," Tim Sparapani, an American Civil Liberties Union lobbyist, told Raw Story, saying the spending bill language authorizing the NAO is not "strong enough to forbid what we would want to see forbidden."

Essentially, the bill only requires the Homeland Security Secretary to assure lawmakers that NAO programs comply with exisiting laws. Congress also has required the DHS Inspector General to provide quarterly classified reports on how much information has been collected by the domestic satellite surveillance, although the bill required those reports be made to the House and Senate Appropriations Committees, not the Homeland Security Committees that are traditionally in charge of DHS oversight.

House Homeland Security Committee members recommended the program be put on hold a year ago, when they requested documents outlining its legal framework and privacy protections. Those reports still have not been handed over, and committee members are not happy at the apparent subversion they suffered by Appropriations Committee members.

"It would appear they have not been satisfied in their demands," Sparapani said of the Homeland Security Committee members who have objected to the satellite surveillance.

Rep. Jane Harman, who has compared the Bush administration's efforts to expand the use of spy satellites to its warrantless wiretapping program, has been one of the key members attempting to block implementation of the program until all these questions are answered.

"Having learned my lesson," she told the Journal, "I don't want to go there again unless and until the legal framework for the entire program is entirely spelled out."

Lawmakers also have seen a 60-page report from the Government Accountability Office, on the condition they not release the report publicly. Sources described its contents for the Journal's Siobhan Gorman, who reports that GAO found that DHS "lacks assurance that NAO operations will comply with applicable laws and privacy and civil liberties standards."
The report cites gaps in privacy safeguards. The department, it found, lacks controls to prevent improper use of domestic-intelligence data by other agencies and provided insufficient assurance that requests for classified information will be fully reviewed to ensure it can be legally provided.
A DHS official told Gorman the department worked hard to include privacy protection and a spokeswoman justified the satellite surveillance's legality because GAO did not specifically say it violates any current laws.

That justification misses the point, Sparapani says, because GAO simply answers questions posed by Congress, and since its latest report has not been made public, no one outside of the government knows what those questions are.

Besides, he says, it's not GAO's job to determine whether programs are legal or not.

"That's like asking the FDA to talk about Internet communications," he says.

Raw Story has left a message with DHS seeking further comment.

There are further concerns about whether the surveillance program would violate Posse Comitatus, which prohibits the military from participating in domestic law enforcement activities. It's "ridiculous" to think that's not what would be happening under this program, Sparapani says.

The ACLU is examining all its options in trying to prevent implementation of this program, which has dramatic potential to violate citizens rights, he says, but filing a lawsuit against DHS may be untenable because of the classified nature of the activities and the difficulty in being able to demonstrate any particular defendant was directly harmed.

Mostly, the ACLU will continue to push Congress and encouraging efforts of lawmakers like Harman and Homeland Security Chairman Bennie Thompson to stop the program.

"The Homeland Security Committee has the right instinct," Sparapani says. "It smells a rotten fish, and the only thing you can do with a rotten fish is throw it out in the trash."