Eyes in the Sky

Here's a suggestion for some enterprising reporter (assuming there are any left). Keep an eye on the office of Federal Judge Anna Diggs Taylor in Detroit. Any second now, an ACLU attorney is bound to rush through the door, with an emergency request to "halt" the expanded use of spy satellites for domestic purposes.

As outlined in today's Wall Street Journal, the nation's top intelligence official has greatly expanded the range of federal and local authorities who can get access to information from the nation's "vast" network of spy satellites. Under a decision made three months ago, the Director of National Intelligence (DNI), Mike McConnell, granted wider access to spy satellite imagery to other civilian agencies and law enforcement. Until now, as the Journal notes, access to that data (beyond the defense and intelligence communities), has been restricted to such agencies as NASA and the U.S. Geological Survey (USGS), and only for the purpose of scientific and environmental study.

The prospect of greater domestic use of spy satellites is bound to throw the ACLU into a tizzy, sending them in search of a friendly federal judge, and some sort of temporary injunction. You may recall that Judge Taylor (a Carter appointee) ruled last year that the NSA domestic surveillance program was unconstitutional, a decision that was subsequently overturned by the 6th U.S. Circuit Court of Appeals.

However, that little setback won't deter the ACLU; nor will their remote prospects for success in challenging the domestic imagery program. As soon as the organization can find someone who's being "harmed" by the new initiative, the ACLU will be in court, claiming that the domestic use of spy satellites is a major threat to our privacy and other civil liberties.

And ordinarily, it might be. But reading the WSJ article carefully, you'll find that the program will be initially aimed at enhancing border security, protecting key infrastructure and assisting first responders after natural disasters. In other words, the imagery will provide wide coverage of area targets--something spy satellites do very well. They won't be zooming in on 79 Wistful Vista (or any other private address) in the initial phase of the program, and it's doubtful that they will ever be used for that purpose, for several reasons.

First, there is an obvious concern about civil liberties. Charles Allen, the former senior CIA officer who now runs intel operations for the Department of Homeland Security, says his agency will "take time" before providing spy satellite imagery to law enforcement agencies. He told the Journal that DHS will have a team of lawyers to review requests for access or use of the systems.

"This all has to be vetted through a legal process," he says. "We have to get this right because we don't want civil-rights and civil-liberties advocates to have concerns that this is being misused in ways which were not intended."

The envisioned "process" will likely build on the example of USGS Civil Applications Committee, which vetted past requests for overhead imagery, primarily for map-making and scientific research. A new DHS branch, the National Applications Office, will control access to overhead imagery by law enforcement and other civilian agencies.

Secondly, as Mr. Allen points out, the limits of satellite technology create restrictions on what those platforms can collect. It's a popular misconception that the U.S. operates a large fleet of spy satellites, able to pinpoint a specific car (or individual) at will. In reality, the number of imagery satellites is relatively small and they constantly orbit the earth, limiting their "dwell time" over specific locations.

Additionally, the requirement for domestic coverage will place further demands on the constellation--demands that must be carefully weighed against service life, operating costs and other factors. Keeping sensors switched on to cover CONUS targets will mean that batteries, communications links and other components wear out faster. Maneuvering a satellite to optimize imagery of a certain port or other infrastructure components will require more fuel--or an earlier replacement of the platform. These are key considerations in an era when spy satellites typically cost billions of dollars, and are expected to remain on orbit for years.

Finally, there's the very real possibility that Congress and the Courts will get involved in the oversight process, given the lack of existing regulations and legal precedent. Given the recent, bruising fight over the NSA surveillance program, it's likely that the administration may offer some "compromise" over the domestic imagery initiative, formalizing the process through the National Applications Office, or even creating an imagery equivalent of the FISA court. While that process would be cumbersome, the White House--and Congress--might be willing to accept that option, creating a legal mechanism for domestic imagery surveillance, and allowing the program to proceed.

However, the legal wrangling over this effort will likely continue for years--and that may not necessarily be a bad thing. There are a number of unanswered questions about using imagery satellites against CONUS targets which require clarification from the legal system.

For example, let's say that an imagery bird is "tasked" for surveillance of an east coast port. Some of the resulting intel "products" cover not only the port complex, but the surrounding neighborhoods as well. Reviewing the data, an imagery analyst notes something suspicious and zeroes in on a particular backyard. The images suggest that possible terrorist activity is on-going at that location, and an attack may be imminent.

What to do? Under existing guidelines (or the lack thereof), the surveillance can continue without a warrant or a judge's approval. Few would argue against the need to keep an eye on the suspicious activity, but at what point does local law enforcement get involved? Can the cops use information derived from overhead surveillance in convincing a judge to sign a search warrant? What can be disclosed in the discovery phase of the case? What about classification issues? These are but a few of the questions that require some sort of legal resolution.

The real key is balancing the legal concerns against the necessary use of overhead imagery platforms in domestic surveillance. In our current threat environment, the initiative described in the WSJ article is both prudent and overdue, with necessary safeguards for individual liberties. The ACLU is obviously free to challenge the program--and we'd be surprised if they didn't--but civil libertarians (and complicit judges) should not be allowed to halt the effort until every legal aspect can be addressed. As we've learned in the FISA debate, a domestic surveillance program can easily operate within the confines of the law--and produce intelligence information that saves American lives. There's no reason the imagery program can't function in the same, productive, law-abiding--manner.

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ADDENDUM: Government lawyers who will (eventually) defend the imagery initiative in court must be thanking their lucky stars for Google Earth. In an era when commercial satellite services are providing high-resolution services, it will be more difficult for the ACLU to claim that the government is invading someone's privacy, when the similar information--on the same targets--can be obtained by anyone with a computer and a credit card.

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