If the Bush Administration has its way, before it leaves town in January the federal intelligence community will be able to track terrorism with spy satellite imagery only imagined in the Bourne Identity film trilogy.

And the Department of Homeland Security (DHS), which always seems willing to take on another foundling in its swelling family of 22 unique federal departments, will be both director and choreographer of this expanded, domestic use of classified reconnaissance satellites, which up until now had been used mostly for civil applications.

That is, if the new National Applications Office (NAO) ever takes off the way DHS and the intelligence community envision it. Right now, homeland security officials are in “preparatory” mode, but if they are successful, DHS and other intelligence and law enforcement agencies will have control over the dissemination of classified satellite data for domestic applications for the first time in three decades.

The goal: to tap this powerful intelligence tool for ongoing homeland defense and, potentially, law enforcement efforts for all levels of government. For example, they will be able to map smuggling routes, detect large weapons caches, spot vulnerabilities in critical infrastructure—and even stake out criminal or terrorist “safe houses.”

“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,” said Charles Allen, DHS’ chief intelligence officer, when testifying before the House Committee on Homeland Security when the project was first announced in September 2007.

DHS will “serve as the Executive Agent and Functional Manager for the NAO,” according to the charter provided to Congress six months later. Aside from office space at the Nebraska Avenue headquarters, the agency will also provide much of the funding from its annual budget, serve as a co-chair of the primary oversight committee and chair of the domain committee with direct interest in homeland security matters.

“We have started all the preliminary steps,” DHS spokeswoman Laura Keehner stated in June.

Critics and skeptics

But key lawmakers on Capitol Hill were skeptical when Allen gave his remarks last year and were feeling no more convinced about the project this summer. In fact, Democrats like Rep. Bennie Thompson (D-Miss.), chairman of the House Committee on Homeland Security, and Rep. Jane Harmon (D-Calif.), chairwoman of the subcommittee on intelligence, threatened to keep it from opening until myriad questions about the program’s legality were answered.

“I want to make absolutely sure on the front end that the legal framework for his program—the whole program—is completely viewed and vetted by Congress before any of it is funded,” Harmon said in an interview with HSToday.

She said she is tired of the “trust me” approach of the administration, which she charges burned her and other lawmakers in 2005 revelations that the secret National Security Agency had been conducting warrantless surveillance on Americans communicating with foreign targets after 9/11.

Critics say DHS is plowing through without congressional approval, with no assurances that the NAO passes constitutional and statutory muster. Some see the individual rights of Americans treated as a mere afterthought.

“Satellite imagery and the other vast capacities at issue are powerful weapons that have been used against our nation’s enemies and that are now poised to be used against our nation’s citizens,” wrote a coalition of 33 civil liberties activists, including the Government Accountability Project, the American Civil Liberties Union and Libertarian Presidential Candidate Bob Barr.

“Congress must ensure that neither DHS nor any other agency is entrusted with such vast and unsupervised powers,” the coalition said. “Congress is right to assess very carefully, and control, the use of these powerful surveillance devices and capacities on people and places in the United States.”

DHS officials say the concerns are valid, but they have been addressed in part by incorporating privacy principles into the NAO’s policies and operating procedures spelled out in the charter and working with the DHS Inspector General’s Office (which has given NAO its seal of approval) to establish internal checks and balances.

“It is a good-government solution to assist [scientific, homeland security and law enforcement] users, and there is nothing secretive or mysterious about its mission,” argued Allen in a July 15 DHS blog, “Why the Country Needs the National Applications Office”. “The NAO will safeguard privacy, civil rights and civil liberties by ensuring that its procedures are in accordance with laws, policies and procedures that protect privacy, civil rights and civil liberties…”

Officials also explained that they will not go ahead with plans to incorporate law enforcement uses until all the civil rights and privacy issues are resolved.

“Rather than standing still and foregoing opportunities to better protect our country,” said DHS Secretary Michael Chertoff in a terse letter responding

to Thompson and Harmon in April, “we are pursuing a more security-oriented approach: developing the NAO’s functionality in the civil applications and homeland security domains as soon as possible while, at the same time, considering the best way to serve the law enforcement domain in accordance with existing law and policy.”

The House Committee on Appropriations—which Reps. Thompson and Harmon asked not to fund the NAO at all—seemed to like this approach and went ahead and provided funding for only the civil and homeland security “domains” in the FY 2009 homeland security appropriations bill, leaving the law enforcement application out. The Senate DHS funding for the NAO included a restriction that the funding be dependent on the expected release of a Government Accountability Office (GAO) study on the legality of the new program.

As of mid-summer, Congress had not taken action on the massive funding package.

Spy intel for everyone

The use of satellite intelligence has a long history in US government, but it is certainly not as provocative as this latest proposal, which would use the extraordinarily-precise images—the Congressional Research Service (CRS) said the capabilities of these classified satellites “are known to have greater resolution than anything available in commercial markets,” like the popular Google Earth—for preventing acts of domestic terrorism and, potentially, catching domestic criminals.

Until now, there have been few instances in which the classified satellites were used domestically for anything other than mapping, elevation data, disaster planning or covering environmental events. According to the National Security Archives at George Washington University, federal security agencies used the satellites to map out the Montana cabin abode of the “Unabomber,” Ted Kaczynski, now serving life in prison.

A fear that the Central Intelligence Agency (CIA) was engaging in illegal surveillance of Americans led to the sanctioning of the domestic use of the spy satellites through the establishment of the Committee for Civil Applications of Classified Overhead Photography of the United States” (CAC) in 1975. Up until now, the panel, which coordinates the use of satellite imagery for civil applications, includes representatives from 10 federal departments, none of which are law enforcement, intelligence or defense related. The CIA serves as an “associate member.”

After the Sept. 11, 2001 attacks, however, the urgency for intelligence fueled new areas of federal surveillance. An Independent Study Group (ISG), established by the Office of the Director of National Intelligence (ODNI), found the time had come to expand access to the secret satellites officially.

The ISG’s recommendations for a new domestic applications office were subsequently accepted by the Bush Administration, and DHS was put in charge. In the NAO charter, the office would replace CAC, establishing a 13-member National Applications Executive Council that would include several CAC members or “customers,” along with ODNI and the Departments of Justice, Defense, Homeland Security and Health and Human Services.

But the very skepticism over domestic spying in the 1970s threatens to prevent DHS and others from realizing their new goal. For example, a CRS report issued to Congress in March entitled Satellite Surveillance: Domestic Issues (opencrs.com/getfile.php?rid=62974) found that it was unclear how much “value added” these satellites would offer existing homeland security and law enforcement programs and also pointed out that the US Supreme Court has never ruled directly on the constitutionality of intelligence gleaned against Americans from the satellites. Nor is it clear, according to the report, whether or not the NAO violates the Posse Comitatus Act, which serves to limit specified US military activities on domestic soil, including surveillance.

All parties are therefore anticipating some answers from the GAO before DHS and others can count satellite intelligence as another tool in the toolbox. As of this writing, the report had not been released. HST