[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                     TURNING SPY SATELLITES ON THE 
                    HOMELAND: THE PRIVACY AND CIVIL 
       LIBERTIES IMPLICATIONS OF THE NATIONAL APPLICATIONS OFFICE 

=======================================================================

                              FULL HEARING

                                 of the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 6, 2007

                               __________

                           Serial No. 110-68

                               __________

       Printed for the use of the Committee on Homeland Security
                                     
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                     COMMITTEE ON HOMELAND SECURITY

               BENNIE G. THOMPSON, Mississippi, Chairman

LORETTA SANCHEZ, California,         PETER T. KING, New York
EDWARD J. MARKEY, Massachusetts      LAMAR SMITH, Texas
NORMAN D. DICKS, Washington          CHRISTOPHER SHAYS, Connecticut
JANE HARMAN, California              MARK E. SOUDER, Indiana
PETER A. DeFAZIO, Oregon             TOM DAVIS, Virginia
NITA M. LOWEY, New York              DANIEL E. LUNGREN, California
ELEANOR HOLMES NORTON, District of   MIKE ROGERS, Alabama
Columbia                             BOBBY JINDAL, Louisiana
ZOE LOFGREN, California              DAVID G. REICHERT, Washington
SHEILA JACKSON-LEE, Texas            MICHAEL T. McCAUL, Texas
DONNA M. CHRISTENSEN, U.S. Virgin    CHARLES W. DENT, Pennsylvania
Islands                              GINNY BROWN-WAITE, Florida
BOB ETHERIDGE, North Carolina        MARSHA BLACKBURN, Tennessee
JAMES R. LANGEVIN, Rhode Island      GUS M. BILIRAKIS, Florida
HENRY CUELLAR, Texas                 DAVID DAVIS, Tennessee
CHRISTOPHER P. CARNEY, Pennsylvania
YVETTE D. CLARKE, New York
AL GREEN, Texas
ED PERLMUTTER, Colorado
VACANCY

       Jessica Herrera-Flanigan, Staff Director & General Counsel

                     Rosaline Cohen, Chief Counsel

                     Michael Twinchek, Chief Clerk

                Robert O'Connor, Minority Staff Director

                                  (ii)



























                            C O N T E N T S

                              ----------                              
                                                                   Page

                               STATEMENTS

The Honorable Bennie G. Thompson, a Representative in Congress 
  From the State of Mississippi, and Chairman, Committee on 
  Homeland Security:
  Oral Statement.................................................     1
  Prepared Statement.............................................     2
The Honorable Peter T. King, a Representative in Congress From 
  the State of New York, and Ranking Member, Committee on 
  Homeland Security..............................................     3
The Honorable Paul C. Broun, a Representative in Congress From 
  the State of Georgia...........................................    35
The Honorable Christopher P. Carney, a Representative in Congress 
  From the State of Pennsylvania.................................    37
The Honorable Charles W. Dent, a Representative in Congress From 
  the State of Pennsylvania......................................    24
The Honorable Bob Etheridge, a Representative in Congress From 
  the State of North Carolina....................................    34
The Honorable Al Green, a Representative in Congress From the 
  State of Texas.................................................    26
The Honorable Jane Harman, a Representative in Congress From the 
  State of California............................................    22
The Honorable Sheila Jackson Lee, a Representative in Congress 
  From the State of Texas........................................    40
The Honorable Daniel E. Lungren, a Representative in Congress 
  From the State of California...................................    28
The Honorable Ed Perlmutter, a Representative in Congress From 
  the State of Colorado..........................................    30
The Honorable David G. Reichert, a Representative in Congress 
  From the State of Washington...................................    31

                               WITNESSES
                                Panel I

Mr. Charles Allen, Chief Intelligence Officer, Office of 
  Intelligence and Analysis, U.S. Department of Homeland 
  Security:
  Oral Statement.................................................     5
  Prepared Statement.............................................     7
Mr. Daniel W. Sutherland, Officer, Civil Rights and Civil 
  Liberties, U.S. Department of Homeland Security:
  Oral Statement.................................................     9
  Prepared Statement.............................................    11
Mr. Hugo Teufel, III, Chief Privacy Officer, U.S. Department of 
  Homeland Security:
  Oral Statement.................................................    14
  Prepared Statement.............................................    15

                                Panel II

Ms. Lisa Graves, Deputy Director, Center for National security 
  Studies:
  Oral Statement.................................................    49
  Prepared Statement.............................................    51
Mr. Barry Steinhardt, Director, ACLU Program on Technology and 
  Liberty, American Civil Liberties Union:
  Oral Statement.................................................    43
  Prepared Statement.............................................    45


                     TURNING SPY SATELLITES ON THE
                    HOMELAND: THE PRIVACY AND CIVIL
                     LIBERTIES IMPLICATIONS OF THE
                      NATIONAL APPLICATIONS OFFICE

                              ----------                              


                      Thursday, September 6, 2007

                     U.S. House of Representatives,
                            Committee on Homeland Security,
                                                    Washington, DC.
    The committee met, pursuant to call, at 10:00 a.m., in Room 
311, Cannon House Office Building, Hon. Bennie G. Thompson 
[chairman of the committee] presiding.
    Present: Representatives Thompson, Harman, Jackson Lee, 
Christensen, Etheridge, Cuellar, Carney, Green, Perlmutter, 
King, Lungren, Reichert, Dent, and Broun.
    Chairman Thompson. The Committee on Homeland Security will 
come to order.
    The committee is meeting today to receive testimony on 
``Turning Spy Satellites on the Homeland: The Privacy and Civil 
Liberties Implication of the National Applications Office.''
    The Department chose Congress' August recess as a time to 
announce, with great fanfare, the creation of a new National 
Applications Office, referred to as the NAO, to facilitate the 
use of spy satellites to protect the homeland.
    For the first time in our Nation's history, the Department 
plans to provide satellite imagery to State and local law 
enforcement officers to help them secure their communities. 
While I am all for information sharing with our first 
preventers, it has to happen the right way. Whether the 
National Applications Office is the right way remains to be 
seen.
    What was perhaps most disturbing about the Department's 
announcement, moreover, is that it wasn't an announcement at 
all. This authorizing committee did not learn about the 
National Applications Office from you, Mr. Allen, but from the 
Wall Street Journal. There was no briefing, no hearing, no 
phone call from anyone on your staff to inform any member of 
this committee of why, how, or when satellite imagery would be 
shared with police and sheriffs' offices nationwide.
    Apparently, we weren't the only ones left in the dark. 
Despite my repeated requests that the Department take privacy 
and civil liberties seriously, the privacy officer and civil 
rights and civil liberties officer were not brought into the 
National Applications Office development process until this 
spring, more than a year and a half after the National 
Applications Office started coming together. This is 
unacceptable. The rigorous privacy and civil liberties 
protection must be baked into from the beginning, and your 
Department's experts on these topics were shut out.
    Furthermore, the National Applications Office will be up 
and running in less than 4 weeks. How the working group 
responsible for developing the rules for State and local use of 
spy satellite imagery will complete their work in this time is 
beyond me. Indeed, they only recently began their work.
    We are here today to help to ensure that privacy and civil 
liberties at the Department do not remain the afterthoughts 
that they have apparently been.
    I want to know from our Department witnesses the scope of 
the program, its legal basis, and specifically how 
constitutional protections will be incorporated. I note, 
however, we will be doing it with one hand tied behind our 
back.
    Last week, we invited the Department's Office of General 
Counsel to send an attorney to explain all this. What we got 
instead was a letter from the Department's Acting General 
Counsel stating, I do not feel that it would be useful for me 
to participate as a witness.
    We frankly don't need the Acting General Counsel's advice 
on determining who will be a useful witness and who will not. I 
had a reason and a purpose for asking him to testify, and his 
absence creates a new question that I will seek to have 
answered later.
    I firmly agree that America must use the tools at its 
disposal to prevent another terrorist attack on our soil, but 
we must do so within the confines of the law. Sharing spy 
satellite information with our State and local law enforcement 
simply goes to far more noncontroversial applications. As Kate 
Martin of the Center for National Security Studies has aptly 
stated, this potentially gives rise to a Big Brother in the 
Sky. Like Ms. Martin, I am not convinced that the potential 
impact of all this has been fully considered or that adequate 
protections are in place.
    I look forward to hearing from our witnesses on how the 
Department plans to address these concerns, and from our panel 
of civil rights and civil liberty experts on the consequences 
of failure to get it right. We welcome our panel of witnesses.
    [The statement of Mr. Thompson follows:]

   Prepared Statement of the Honorable Bennie G. Thompson, Chairman, 
                     Committee on Homeland Security

    The Department chose Congress' August recess as the time to 
announce--with great fanfare--the creation of a new National 
Applications Office (NAO) to facilitate the use of spy satellites to 
protect the homeland.
    For the first time in our nation's history, the Department plans to 
provide satellite imagery to state and local law enforcement officers 
to help them secure their communities.
    While I'm all for information sharing with our first preventers, it 
has to happen the right way. Whether the NAO is the `right way' remains 
to be seen. What was perhaps most disturbing about the Department's 
`announcement', moreover, is that it wasn't an announcement at all.
    This authorizing Committee did not learn about the NAO from you, 
Mr. Allen, but from the Wall Street Journal. There was no briefing, no 
hearing, and no phone call from anyone on your staff to inform any 
Member of this Committee of why, how, or when satellite imagery would 
be shared with police and sheriffs' officers nationwide.
    Apparently we weren't the only ones left in the dark.
    Despite my repeated requests that the Department take privacy and 
civil liberties seriously, the Privacy Officer and Civil Rights and 
Civil Liberties Officer were not brought into the NAO development 
process until this spring--more than a year and a half after the NAO 
started coming together.
    This is unacceptable. Rigorous privacy and civil liberties 
protections must be `baked in' from the beginning, and your 
Department's experts on these topics were shut out.
    Furthermore, the NAO will be up and running in less than four 
weeks. How the working group responsible for developing the rules for 
state and local use of spy satellite imagery will complete their work 
in time is beyond me. Indeed, they only recently began their work!
    We're here today to help and to ensure that privacy and civil 
liberties at the Department do not remain the afterthought that they 
have apparently been. I want to know from our Department witnesses the 
scope of the program, its legal basis, and specifically how 
Constitutional protections will be incorporated.
    I note, however, that we'll be doing so with one hand tied behind 
our back. Last week, we invited the Department's Office of General 
Counsel to send an attorney to explain all this.
    What we got instead is a letter from Gus Coldebella, the 
Department's Acting General Counsel, stating, `I do not feel that it 
would be useful for me to participate as a witness,' I frankly don't 
need the Acting General Counsel's advice on determining who will be a 
useful witness and who will not. I had a reason and a purpose for 
asking Mr. Coldebella to testify, and his absence creates new questions 
that I will seek to have answered.
    I firmly agree that America must use the tools at its disposal to 
prevent another terrorist attack on our soil--but we must do so within 
the confines of the law. Sharing spy satellite information with state 
and local law enforcement simply goes far beyond more non-controversial 
applications. As Kate Martin of the Center for National Security 
Studies has so aptly stated, it potentially gives rise to a `Big 
Brother in the Sky.' Like Ms. Martin, I am not convinced that the 
potential impact of all this has been fully considered or that adequate 
protections are in place.
    I look forward to hearing from our witnesses on how the Department 
plans to address these concerns and from our panel of civil rights and 
civil liberties experts on the consequences of failure to `get it 
right.'

    Mr. Thompson. I now yield to the ranking member for his 
statement.
    Mr. King. Thank you, Chairman Thompson. I want to welcome 
the witnesses. I look forward to their testimony.
    I also share Chairman Thompson's concern and frustration 
that this committee was not made aware of this program at an 
early date, early time. Not for any reasons of turf or ego, but 
because if we are to be an effective oversight committee, if 
there is to be an effective relationship between the committee 
and the Department, it is essential that we be brought in at 
the start, not find out about it from press reports after the 
fact.
    I have great regard for Mr. Allen. I am confident this will 
not be repeated in the future. I just want to emphasize that I 
fully agree with the chairman on this that this was not handled 
properly. And, again, we are not just talking about questions 
of technicalities or procedure, we are talking about the 
effectiveness and the legality of the program itself.
    Now, having said that, from the information we have gotten 
over the past several weeks, including a briefing this morning, 
I at this stage do not see constitutional issues. Having said 
that, there is still no reason why--and the reason I say that, 
I don't see a fourth amendment issue here. But, again, as the 
testimony comes out today and as we hear especially from the 
second panel of witnesses, there may be issues raised that 
cause concern.
    And also, it is my understanding that for the most part, if 
not entirely, what is going to be done under this program in a 
comprehensive, coordinated, cohesive way is what has been done 
in an ad hoc way in a variety of ways over the past 30 years. 
So this certainly appears to be a step in the right direction, 
and it is unfortunate we have what may well be a needless 
controversy because we were not brought in early on.
    I also must say to Chairman Thompson, though, that I am 
disappointed that we could not accommodate the requests of the 
DNI to have the Deputy Director of National Intelligence for 
Collection and also the DNI Civil Liberties Protection Officer 
testifying with the governmental witnesses. And, again, this is 
not just a matter of protocol, but I just thought it would add, 
if we are concerned about civil liberties, if we are concerned 
about civil rights, if we are concerned about what protections 
are in place, I believe they should have been allowed to 
testify at the government panel. And by putting them and 
offering them to testify at the second panel in an adversarial 
role, to me, defeats the purpose of what we are trying to do 
here as a committee. So, again, Mr. Chairman, I am disappointed 
in your decision not to give them the opportunity to testify at 
the government panel.
    Having said that, I am sure this panel will give us the 
much needed information we need. I also look forward to the 
testimony of members on the second panel.
    And I think it is important to keep in mind that we are 
talking about here confronting an enemy which is attempting to 
destroy us. It is essential that we do have effective 
surveillance. It is essential that we use all the necessary 
tools. From what I have learned so far, I believe sufficient 
protections are in place. But, again, we could avoid a lot of 
this issue if we had been brought in early on. And certainly 
not just Chairman Thompson and myself, but certainly people 
such as Chairperson Harman who has such a long experience in 
this and is Chair of the relevant committee, and as Chairman 
Conyers of the oversight committee. This would be a lot further 
along I think standing together in a much more bipartisan way 
if it had been done that way from the start.
    So with that, I yield back the balance of my time the 
balance of my time. I thank the chairman for calling this 
hearing, and I look forward to the testimony.
    Chairman Thompson. Thank you very much, Mr. King. Let me 
indicate that we invited DNI to participate on the second 
panel. They refused, as you know. But we are also opened to 
holding additional hearings on this matter going forward.
    We thought it important, since Mr. Allen's shop is 
responsible for this particular program, that they be given 
exclusive panel presentation for this hearing, and for that 
reason we made that decision. But other members of the 
committee are reminded that, under the committee rules, opening 
statements may be submitted for the record.
    I welcome the first panel of witnesses.
    Our first witness, Charlie Allen, is the Department's Chief 
Intelligence Officer. Mr. Allen leads the Department's 
intelligence work through the Office of Intelligence and 
Analysis and focuses on improving the analysis and sharing of 
terrorist threat information.
    Our second witness, Mr. Dan Sutherland, is the Department's 
Officer for Civil Rights and Civil Liberties. Mr. Sutherland 
provides advice to the Secretary and senior department officers 
on a full range of civil rights and civil liberties issues.
    Our third witness, Hugo Teufel, is the Department's Privacy 
Officer. Mr. Teufel is primarily responsible for privacy policy 
at the Department. That includes assuring that the technologies 
used by the Department to protect the United States sustain and 
do not erode privacy protections related to the use, 
collection, and disclosure of personal information.
    Without objection, the witnesses' full statement will be 
inserted in the record. I now ask each witness to summarize his 
statement for 5 minutes, beginning with Mr. Allen.

STATEMENT OF CHARLES ALLEN, CHIEF INTELLIGENCE OFFICER, OFFICE 
 OF INTELLIGENCE AND ANALYSIS, DEPARTMENT OF HOMELAND SECURITY

    Mr. Allen. Chairman Thompson, Ranking Member King, members 
of the committee, thank you for the opportunity to speak about 
the National Applications Office.
    I would like to point out that the National Technical 
Means, such as overhead imagery from satellites, have been used 
for decades lawfully and appropriately to support a variety of 
domestic uses by the U.S. Government's scientific, security, 
and law enforcement agencies. The National Applications Office, 
when operational, will facilitate the use of remote sensing 
capabilities to support a variety of customers, many of whom 
have previously relied on ad hoc processes to access these 
intelligence capabilities.
    The National Applications Office will provide not only a 
well ordered transparent process for its customers, but also 
ensure that full protection of civil rights, civil liberties 
and privacy are applied to the use of those remote sensing 
capabilities. In doing so, it will build on the outstanding 
work of the Civil Applications Committee, known as the CAC, 
which was established in 1975 to advance the use of the 
capabilities of the intelligence community for civil, 
nondefense, national security uses.
    My staff and I have worked closely with the CAC to ensure 
that the standup of the National Applications Office, with the 
broadened mandate to include homeland security and law 
enforcement communities, will still support civil and 
scientific need for geospatial imagery at a robust level. Let 
me give you some background on the standup of the NAO, the 
National Applications Office.
    In April 2005, the Director of National Intelligence, the 
DNI, and the Director of the U.S. Geological Survey 
commissioned an independent study group to review the current 
and future role of the CAC and to study whether the 
intelligence community was employing National Technical Means 
effectively for homeland security as well as law enforcement 
purposes. The study group, led by Mr. Keith Hall, former 
Director of the National Reconnaissance Office, concluded that, 
unlike civil users, many homeland security and law enforcement 
agencies lacked a Federal advocate for the use of National 
Technical Means. The study group's bottom line was, and I 
quote, ``an urgent need for action, because opportunities to 
better protect the Nation are being missed.''
    They recommended unanimously that the DNI establish a new 
program to employ effectively the intelligence community's 
national technical capabilities not only for civil purposes but 
also for homeland security and law enforcement.
    The study group also recommended that the program be 
established within the Department of Homeland Security. In 
response to the study group's recommendation, the Director of 
National Intelligence designated the Secretary of Homeland 
Security as executive agent in late spring 2007 to establish 
the program in the form of a National Applications Office. A 
National Applications Executive Committee, cochaired by the DNI 
and the DHS, will be established to provide senior interagency 
oversight and direction.
    In the past, with the CAC's assistance, scientists have 
used historical and current satellite imagery to study issues, 
such as environmental damage, land use management, and for 
similar purposes research. Similarly, some homeland security 
and law enforcement users also in the past routinely accessed 
imagery and other technical intelligence directly from the 
intelligence community, especially in response to national 
disasters such as hurricanes and forest fires.
    The Department of Homeland Security/U.S. Secret Service has 
used overhead imagery to identify areas of vulnerability based 
on topography and to build large maps to support its security 
planning.
    DHS and Federal law enforcement agencies have used imagery 
to identify potential vulnerabilities of facilities used for 
high-profile events such as the Super Bowl.
    These are all valid, useful, lawful uses of National 
Technical Means that enhance our ability to protect our Nation, 
whether the threats are manmade or naturally occurring.
    The objective of the NAO is to bring all these requirements 
for imagery support under one oversight body where they are not 
only prioritized but reviewed to determine whether the 
requirements are appropriate and lawful.
    In short, the NAO's mission is to serve the right customers 
with the right product at the right time. On a day-to-day 
basis, the NAO will work with civil applications, homeland 
security, and, on a case-by-base basis, law enforcement 
customers to articulate their requirements to determine how our 
satellite imagery systems may be able to satisfy them, and 
submit any validator request to the National Geospatial 
Intelligence Agency for collection tasking.
    The National Applications Office will also be able to 
access through the National Geospatial Intelligence Agency 
commercially available imagery to meet many of the customer 
needs.
    Allow me to state categorically that the National 
Applications Office will have no relationship or interaction 
with either the FISA or the terrorist surveillance programs.
    Now, let me talk about privacy and civil liberties. I am 
very pleased today to have with me my colleagues, Dan 
Sutherland and Hugo Teufel, who will speak in more detail about 
how NAO protects privacy and civil liberties. Since its 
inception, we have considered privacy and civil liberties to be 
at the forefront of the planning of the office.
    The independent study group in 2005 articulated the need to 
protect privacy and civil liberties as a guiding principle. In 
my view, the NAO will strengthen privacy and civil liberties. 
The NAO will be subject to direct oversight by privacy and 
civil liberties offices within both the Department of Homeland 
Security and the Office of the Director of National 
Intelligence. In addition, the National Applications Office 
will have its own legal adviser. At the executive level, the 
DNI's Civil Liberties Protection Officer and its Office of 
General Counsel, as well as DHS's Chief Privacy Officer and 
Officer for Civil Rights and Civil Liberties, will serve as 
advisers to the National Applications Executive Committee, 
which conducts the oversight and guidance. As evidenced today, 
the Congress will provide additional oversight of the NAO.
    Together, these oversight mechanisms will ensure that the 
NAO will protect privacy, civil rights, and civil liberties 
under the highest standards while serving the strength and the 
security of this Nation. I assure you and the American people 
that the appropriate use of National Technical Means 
capabilities will make the Nation safer while maintaining 
strong protections of privacy and civil liberties. The National 
Applications Office will continue longstanding practices of 
employing these capabilities with full regard for the privacy 
and civil liberties of all Americans.
    The rules for lawful and appropriate use for such 
capabilities have not changed. Under all conditions, 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 of its capabilities to 
ensure the safety and well-being of its citizens. The NAO 
brings a critical and sensitive national capability to bear. It 
does so with the full respect for law and the rights our 
citizens cherish. I request your support for this vital 
national program.
    Thank you very much.
    [The statement of Mr. Allen follows:]

      Prepared Statement of the Honorable charles E. Allen, Chief 
           Intelligence, Office of Intelligence and Analysis,

    Chairman Thompson, Ranking Member King, Members of the Committee, 
thank you for the opportunity to speak with you about the National 
Applications Office (NAO). National Technical Means (NTM)--such as 
overhead imagery from satellites--have been used for decades, lawfully 
and appropriately, to support a variety of domestic uses by the US 
government's scientific, law enforcement and security agencies. The 
NAO, when operational, will facilitate the use of remote sensing 
capabilities to support a wide variety of customers, many of whom 
previously have relied on ad hoc processes to access these intelligence 
capabilities. The NAO will provide not only a well-ordered, transparent 
process for its customers but also will ensure that full protection of 
civil rights, civil liberties and privacy are applied to the use of 
these remote sensing capabilities.
    Once initially operational this fall, the NAO will facilitate the 
use of NTM for civil applications and homeland security purposes. A 
third domain, law enforcement, will be a part of the NAO, but will not 
be operational on October 1 to allow additional time to closely examine 
any unique aspects of law enforcement requirements in light of privacy 
and civil liberties. In doing so, it will build on the outstanding work 
of the Civil Applications Committee, known as the ``CAC,'' which was 
established in 1975 to advance the use of the capabilities of the 
Intelligence Community for civil, non-defense uses. My staff and I have 
worked closely with the CAC to ensure that the stand-up of the NAO--
with a broadened mandate to include the homeland security and law 
enforcement communities--will still support civil and scientific need 
for geospatial imagery, at an even more robust level.

             Background of the National Applications Office

    From its inception, the CAC has helped civil and scientific users 
understand how NTM can assist their missions and how to gain access to 
information normally in the hands of the intelligence agencies. With 
the CAC's assistance, for example, scientists have used historical and 
current satellite imagery to study issues such as environmental damage, 
land use management, and for similar purposes of research. The CAC also 
has used imagery to study glaciers and examine the effects of global 
climate change.
    Similarly, some homeland security and law enforcement users in the 
past routinely accessed imagery and other technical intelligence 
directly from the Intelligence Community, especially in response to 
natural disasters such as hurricanes and forest fires. The Department 
of Homeland Security (DHS), for example, used overhead imagery in 2005 
to examine areas damaged by Hurricanes Katrina and Rita to determine 
areas most in need of assistance. The DHS US Secret Service has used 
overhead imagery to identify areas of vulnerability based on topography 
and to build large maps to support its security planning. DHS and 
Federal law enforcement agencies have used imagery to identify 
potential vulnerabilities of facilities used for high-profile events 
such as the Super Bowl. These are all valid, lawful uses of NTM that 
enhance our ability to protect our nation--whether the threats are man-
made or naturally occurring. The objective of the NAO is to bring all 
of these requirements for imagery support under one oversight body, 
where they are not only prioritized but also reviewed to determine 
whether requirements are appropriate and lawful. Allow me to state 
categorically, the NAO will have no relationship or interaction with 
either the FISA or the Terrorist Surveillance Programs.
    Let me provide background on the decision to establish the NAO. The 
Director of National Intelligence (DNI) and the Director of the U.S. 
Geological Survey commissioned an independent study group in early 2005 
to review the current and future role of the CAC and to study whether 
the Intelligence Community was employing NTM capabilities effectively 
for homeland security and law enforcement purposes. The study group, 
led by Mr. Keith Hall, formerly Director of the National Reconnaissance 
Office, concluded that, unlike civil users, many homeland security and 
law enforcement agencies lacked a federal advocate for the use of NTM. 
In addition, the study group determined that many agencies, especially 
at the state and local level, did not know what remote sensing 
capabilities the Intelligence Community possessed that might be useful 
to them or how to request NTM in support of their missions. The study 
group's bottom line was that there was ``an urgent need for action 
because opportunities to better protect the nation are being missed.'' 
It recommended unanimously that the DNI establish a new program to 
employ effectively the Intelligence Community's NTM capabilities not 
only for civil purposes, but also for homeland security and law 
enforcement uses as well.
    In response to the study group's recommendations, the DNI 
designated the Secretary of Homeland Security as Executive Agent in 
late spring 2007 to establish the new program in the form of the NAO. 
As it becomes initially operational this fall, the NAO will work with 
the Intelligence Community to improve access to NTM for domestic users 
in the homeland security and civil applications communities at all 
levels of government, who, heretofore, have not had a structured 
process to request such intelligence. DHS, as executive agent, will 
operate the NAO. A National Applications Executive Committee, co-
chaired by the DNI and DHS, will be established to provide senior 
interagency oversight and guidance. ``This interagency forum will 
ensure the NAO adequately serves those government customers who have 
lawful and appropriate requirements for geospatial intelligence, to 
include classified satellite imagery and derived products.

                         Day to Day Activities

    On a day-to-day basis, the NAO will work with civil applications, 
homeland security, and in the future on a case-by-case basis, law 
enforcement customers, to articulate their requirements, determine how 
our satellite imagery systems may be able to satisfy them, and submit 
any validated requests to the National Geospatial Intelligence Agency 
(NGA) for review, approval and collection tasking. The NAO also will be 
able to access, through NGA, commercially available imagery to meet 
many customer needs.
    The NAO will be advised and supported by three working groups 
representing customer domains: civil applications, homeland security, 
and law enforcement. It should be noted that the law enforcement 
working group will be stood up over the next year, after closely 
examining any unique aspects of law enforcement requirements in light 
of privacy and civil liberties. All three domain working groups will 
include representatives from the DHS Privacy Office and the DHS Office 
for Civil Rights and Civil Liberties as well as an attorney assigned 
directly to the NAO.
    In addition to its day-to-day business of helping its customers 
gain access to NTM, the NAO will help customers take advantage of 
educational opportunities to learn about the Intelligence Community 
remote sensing capabilities, including their benefits and limitations. 
The NAO also will serve as an advocate in Intelligence Community 
discussions about future technology investments that might benefit the 
civil applications, homeland security, and law enforcement domains.

                      Privacy and Civil Liberties

    Since its inception, we have considered privacy and civil liberties 
to be at the forefront of the planning for the NAO. The independent 
study group in 2005 clearly articulated the need to protect privacy and 
civil liberties as a guiding principle in its findings. In my view, the 
NAO--when operational--will strengthen privacy and civil liberties. The 
NAO will be subject to direct oversight by privacy and civil liberties 
offices within both the Department of Homeland Security and the Office 
of the Director of National Intelligence. In addition, the NAO will 
have it own legal advisor. At the executive level, the DNI's Civil 
Liberties Protection Officer and its Office of General Counsel, as well 
as DHS's Chief Privacy Officer and Officer for Civil Rights and Civil 
Liberties Officer, will serve as advisors to the National Applications 
Executive Committee, which will provide executive oversight and 
guidance for the NAO. The President's Privacy and Civil Liberties 
Oversight Board will have oversight of the use of NTM for combating 
terrorism.
    In addition, all requests from the NAO for the use of classified 
satellite imagery will continue to abide by current NGA processes and 
be vetted by NGA attorneys and policy staff to determine legal 
appropriateness before collection tasking occurs. This review provides 
a supplemental level of oversight in addition to the strong protections 
already embedded in the NAO. In this way, both DHS and NGA will ensure 
adherence to applicable law and regulation, and intelligence oversight 
rules. DHS and NGA are bound by intelligence oversight rules, explained 
in Executive Order 12333, that protect the privacy and civil liberties 
of US persons. Further, DHS and NGA are required to report any 
violations of law or other questionable activities to the Intelligence 
Oversight Board of the President's Foreign Intelligence Advisory Board 
including violations of E.O.333. Finally, both DHS and NGA are 
subject to oversight by the House and Senate intelligence committees.

                               Conclusion

    I assure you and the American people that the appropriate use of 
these NTM capabilities will make the nation safer while maintaining the 
privacy and civil liberties of Americans. The NAO will continue long-
standing practices of employing these capabilities with full regard and 
protection for the privacy and civil liberties of Americans. The rules 
for lawful and appropriate use of such capabilities have not changed.
    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. It 
does so with full respect for the law and the rights our citizens 
cherish. I request your support for this vital national program.

    Chairman Thompson. Thank you, Mr. Allen, for your 
testimony.
    I now recognize Mr. Sutherland to summarize his statement 
for 5 minutes.

 STATEMENT OF DANIEL W. SUTHERLAND, OFFICER, CIVIL RIGHTS AND 
        CIVIL LIBERTIES, DEPARTMENT OF HOMELAND SECURITY

    Mr. Sutherland. Thank you, Chairman Thompson, ranking 
Member King, and distinguished members of the committee. Thank 
you for giving me the opportunity to speak to you today about 
the civil rights and civil liberties implications of the new 
National Applications Office.
    We believe that the work of the new NAO will reach its 
highest level of effectiveness when it is carried out in a way 
that respects America's rich constitutional history. So I want 
to begin by assuring you that our office, the Office for Civil 
Rights and Civil Liberties, is working very closely with 
Assistant Secretary Allen and his staff and our colleagues in 
the Privacy Office to assure that the new NAO meets that 
highest level of effectiveness. In addition, we look forward to 
continuing to work with the Director of National Intelligence's 
Civil Liberties Protection Officer and the Privacy and Civil 
Liberties Oversight Board as well as this committee on this 
issues. There are a complex range of people who are working on 
these issues, and we have a good working relationship that we 
look forward to building on.
    Just briefly, let me touch on the mission of our office 
generally. In accordance with 6 USC, Section 345, the mission 
of the Office for Civil Rights and Civil Liberties is to assist 
the dedicated men and women of the Department of Homeland 
Security to secure our country while preserving our freedoms 
and our way of life.
    We have worked on issues, almost all the issues that have 
faced the homeland security effort from the Hurricane Katrina 
recovery, to the operation of watch list immigration policy, to 
the training of our workforce. Of course, we collaborate 
extensively with our colleagues in the Privacy Office as well. 
So, just a general layout of our office.
    Let me talk about how it relates to the National 
Applications Office and our work here. I want to highlight 
quickly four reasons why we think that the protection of civil 
liberties should become a core responsibility, a part of the 
basic infrastructure of the NAO.
    The first reason is because the people who lead the program 
have made it clear that they are committed to protecting civil 
liberties. You just heard Assistant Secretary Allen's 
testimony. But, in addition, our office was written into the 
planning for the NAO and our important role was made clear in 
the NAO's concept of operations, and in recent weeks we have 
been working very closely with the NAO, the larger Intelligence 
and Analysis Directorate within which it operates, and a 
variety of these other agencies. And we have established a 
solid working relationship with the NGA where these 
applications will come from.
    So the first reason that we believe that there is a 
protection of civil liberties is that it is being built into 
the infrastructure as we begin to operate the program.
    The second reason why we are optimistic is that we have a 
solid track record of working with our colleagues in 
Intelligence and Analysis on projects such as this. For 
example, our offices have worked together on many initiatives 
relating to radicalization and engagement with American Arab, 
Muslim, Sikh, and South Asian communities, an extremism that 
our country is facing. We described some of that work in 
previous meetings with staff members here and in testimony in 
front of this committee.
    We are also heavily involved in the Department's 
information sharing environment efforts which are led by INA, 
and this year we have begun working on fusion centers and 
helping in terms of training and other work that INA is doing 
in terms of fusion centers.
    So there are numerous other projects that I could specify. 
Those are just a few. We have an increasing and deep working 
relationship with our colleagues in Intelligence and Analysis, 
and so we believe that that is a strong track record we can 
build on.
    Third, the NAO is creating important procedural safeguards 
to protect civil liberties. Just as Felix Frankfurter once 
wrote, the history of liberty has largely been the history of 
the observance of procedural safeguards. In other words, if 
parameters are established, if ground rules are laid out, the 
chances that violations will occur are much less likely, and 
that if those violations occur, they will be limited in scope 
and effect.
    So, Charlie has already referenced several of the 
safeguards. Let me just mention them again.
    First, we are working with the NAO to implement the Con Ops 
for the office. The Con Ops integrates in the protection the 
role of the Civil Rights and Civil Liberties Office as well as 
the Privacy Office.
    Secondly, we are working on the standard operating 
procedures, and will make recommendations related to the extent 
and process for our review of any NAO requests. We have already 
begun working with and are assured that we are going to be 
involved in a variety of different legal and policy working 
groups that are associated with this.
    And, finally, we will serve as formal advisers to the 
National Applications Executive Committee which will be 
established in the upcoming weeks.
    So all of these procedural steps will help ensure that 
privacy and civil liberties issues are fully considered in the 
ongoing work of the NAO.
    So fourth and finally, maybe most importantly, we will 
provide training on these issues. We have already been asked to 
provide training on basic civil liberties protections to the 
staff of the NAO in the upcoming weeks, and we expect to 
accomplish that initial training here in this month. And we 
believe that our training efforts should extend beyond DHS 
employees in the sense of customer education on civil liberties 
as one means of warding off potential misuse.
    I want to thank you for inviting me to share our thoughts 
on the National Applications Office, and I look forward to 
working with this committee to provide oversight of this 
important program. Thank you.
    [The statement of Mr. Sutherland follows:]

                Prepared Statement Daniel W. Sutherland

Introduction
    Chairman Thompson, Ranking Member King and distinguished Members of 
this Committee: Thank you for providing me the opportunity to testify 
today on the National Applications Office (NAO) and the civil rights 
and civil liberties implications of its work. The work undertaken by 
the new NAO within our Department will be an asset to the country's 
homeland security effort, and NAO will reach its highest level of 
success when accomplished in ways that respect America's rich 
Constitutional history. I want to begin by assuring the Committee that 
the Office for Civil Rights and Civil Liberties is engaged with 
Assistant Secretary Allen and his staff and our colleagues in the 
Privacy Office to ensure that the NAO reaches the highest level of 
effectiveness. In addition, I look forward to continuing to work with 
our colleagues in the Office of the Director of National Intelligence's 
Civil Liberties Protection Officer, the Privacy and Civil Liberties 
Oversight Board and this Committee to provide strong oversight of the 
NAO.

The Mission of the Office for Civil Rights and Civil Liberties
    In accordance with 6 U.S.C. Sec. 345, the mission of the Office for 
Civil Rights and Civil Liberties is to assist the dedicated men and 
women of the Department of Homeland Security (DHS) to secure our 
country while preserving our freedoms and our way of life. We assist 
our colleagues in four ways:
         We provide proactive advice on a wide range of issues, 
        helping the Department to shape policy in ways that are mindful 
        of civil rights and civil liberties;
         We investigate and facilitate the resolution of 
        complaints filed by the public regarding Departmental policies 
        or actions taken by Departmental personnel;
         We provide leadership to the Department's equal 
        employment opportunity programs, seeking to make this 
        Department the model Federal agency; and,
         We serve as an information and communications channel 
        with the public regarding these issues.
    In essence, we provide advice to our colleagues on issues at the 
intersection of homeland security and civil rights and civil liberties. 
We therefore have the opportunity to work closely with every DHS 
component, both in Washington, D.C., and in many field offices across 
the country. Our Office has been involved in nearly all aspects of the 
critical issues facing the homeland security effort--from the Hurricane 
Katrina recovery, to the operation of watch lists, to immigration 
policy, to the training of our workforce.
    Because our Office is small, we realize that we must, to use a 
sports analogy, ``punch above our weight.'' One way we have 
accomplished this is by creating the ``Civil Liberties Institute,'' a 
program to provide high-quality training on a wide range of topics.
    Through the ``Civil Liberties Institute,'' we have developed:
         a training video that emphasizes elements of the 
        National Detention Standards;
         a multi-hour instructional video on how to screen 
        people with disabilities at airports;
         educational materials on how to screen those who wear 
        religious head coverings;
         an intensive training DVD for DHS personnel who 
        interact with Arab Americans, Muslim Americans, and people from 
        the broader Arab and Muslim world; and,
         ``Guidance Regarding the Use of Race for Law 
        Enforcement Officers,'' a tutorial on the Department of 
        Justice's Guidance and the DHS policy.
    These materials are available to DHS law enforcement employees in 
DVD, CD-ROM, or via on-line web-based training formats.
    Of course, we collaborate extensively with our colleagues in the 
Privacy Office. We work closely with colleagues from the Office of the 
Director of National Intelligence (DNI), the Privacy and Civil 
Liberties Oversight Board (PCLOB), and others across the government.
    The work of the Office for Civil Rights and Civil Liberties has 
been supported by other DHS elements because we provide constructive 
advice that allows the men and women of the Department to fulfill their 
mission at the highest level of effectiveness. Our work has also been 
welcomed by colleagues outside of government, as demonstrated by our 
frequent collaborations with leading civil rights, civil liberties, 
immigration, and community organizations. Our Office plays a unique 
role within DHS, and, we hope, a valuable one, and we will continue to 
assist our colleagues to tackle complex issues in innovative and 
constructive ways.

    The Office for Civil Rights and Civil Liberties' Role in the 
National Applications Office
    Having laid out the role of our Office, let me address the specific 
topic of the National Applications Office. I would like to highlight 
four reasons why the protection of civil liberties will become a core 
responsibility--part of the basic infrastructure--of the National 
Applications Office.
    First, the people who lead the program have made it clear that they 
are committed to protecting civil liberties. The Office for Civil 
Rights and Civil Liberties was written into the planning for the NAO 
and our important role is made clear in the NAO Concept of Operations 
(CONOPS). In recent weeks, we have been working very closely with the 
NAO, the DHS Office of Intelligence and Analysis (I&A) within which the 
NAO functions, the DHS Privacy Office, the DNI, the PCLOB, and the 
National Geospatial-Intelligence Agency (NGA). The Office for Civil 
Rights and Civil Liberties has established a solid working relationship 
with our colleagues in each of these organizations. The commitment to 
establishing safeguards to protect, and indeed enhance, our civil 
liberties has been front and center of all of these discussions. We 
believe that a great foundation has been laid for working together over 
the upcoming weeks, months and years.
    Second, we have a solid track record of working with our colleagues 
in I&A on complex projects such as this. Our offices have worked 
together on many initiatives related to extremism and radicalization. 
Assistant Secretary Allen and his colleagues at I&A are great 
supporters of our work to engage with the American Arab, Muslim, Sikh 
and South Asian communities, the fruits of which we have described in 
prior meetings with your staffs and in testimony before this Committee. 
We are heavily involved in the Department's Information Sharing 
Environment efforts led by I&A, and we are also taking a leadership 
role with respect to government-wide efforts lead by the Program 
Manager for the Information Sharing Environment at DNI. This year we 
have begun to partner with I&A to train personnel and develop sound 
civil rights and civil liberties policies and procedures for State and 
local fusion centers. There are numerous other projects for which our 
offices consult each other on a regular basis. This strong track record 
reassures us that we will be in a good position to advise the NAO for 
the long term.
    Third, the NAO is creating important procedural safeguards to 
protect civil liberties. Justice Felix Frankfurter once wrote, ``The 
history of liberty has largely been the history of the observance of 
procedural safeguards.'' \1\ That is, if parameters are established, if 
ground rules are laid out, the chances that violations will occur are 
much less likely and are much more likely to be limited in scope and 
effect. There are several significant safeguards that are being built 
into the NAO's infrastructure. First, we are working with NAO to 
implement the CONOPS for the office. The CONOPS includes a prominent 
role for our Office and the Privacy Office to provide support and 
guidance to the NAO, and will allow us to be embedded into the work of 
the NAO. Similarly, we will review the Standard Operating Procedures 
(SOP) and make recommendations related to the extent and process for 
our review of NAO requests for NGA Products and Services. We have 
already been assured that we will be part of the Policy and Legal 
Working Group, co-chaired by DNI and DHS, which we and the Privacy 
Office will participate in along with all relevant NAO sub-working 
groups. In addition, together with the Privacy Office and DNI's Civil 
Liberties Protection Officer, we will serve as formal advisors to the 
National Applications Executive Committee, which will be established in 
the upcoming weeks. All of these procedural steps will help ensure that 
privacy and civil liberties issues are fully considered in the on-going 
work of the NAO.
---------------------------------------------------------------------------
    \1\ McNabb v. United States, 318 U.S. 332, 347 (1943).
---------------------------------------------------------------------------
    Fourth and finally, we will provide training on these issues. We 
and the Privacy Office have already been asked to lead a training 
session on civil liberties and privacy protections to the new staff of 
the NAO. We expect that this training, which is anticipated to be 
scheduled for later this month, will only be the first of many such 
efforts. We believe that our training efforts should extend beyond DHS 
employees. For example, we will lead an effort for ``customer 
education'' on civil liberties as one means of warding off potential 
misuse.

Civil Liberties and the Domestic Use of Geospatial Imagery and Derived 
Products and Services
    As we undertake our work, we will assist the NAO effort by keeping 
a watchful eye on several key potential civil liberties issues. We will 
carefully watch:
         The expansion of customers and increased use of 
        geospatial imagery and derived products and services to ensure 
        that the increased volume does not lead to mistakes. As the NAO 
        customer base increases, it will likely receive many more new 
        project requirements, potentially posing an increased risk that 
        improper requests will be approved in error, with a concurrent 
        increased risk to civil liberties. We will help our colleagues 
        at NAO to ensure that quantity does not result in sacrifices of 
        quality.
         NGA provides a legal and policy review of all Federal 
        requests for domestic geospatial intelligence (GEOINT). NGA has 
        a long-established process to review domestic requests to 
        ensure compliance with the law and Intelligence Oversight 
        rules. That process employs the Proper Use Memorandum (PUM). A 
        PUM is a memorandum between the requesting agency and NGA 
        outlining the parameters of permissible requests. A PUM 
        includes the requesting agency's authorized mission permitting 
        use of such information, a description of the intended use of 
        the domestic imagery, who will exploit the domestic imagery, 
        who will receive the domestic imagery and derived products, 
        storage and protection of the imagery, and certification by an 
        appropriate official of the lawfulness and validity of the 
        request. We will work with the NAO to ensure that the NAO's-
        sponsored PUMs submitted to NGA contain the appropriate 
        parameters and authorities. We will also work with NAO to 
        ensure that requests received and information provided fit 
        within the contours of these PUMs.
         The NAO will review all State and local law 
        enforcement requests for the use of NGA products and services. 
        NAO will forward their vetted requests to NGA for legal and 
        policy review and final approval. Domestic requests for NGA 
        products and services will only be approved if they comply with 
        applicable legal requirements, including, but not limited to, 
        Executive Order 12333, and would not result in an unreasonable 
        search under the Fourth Amendment. Our Office will monitor 
        proposed efforts by law enforcement users involving novel uses 
        of geospatial imagery and derived products and services or 
        those which approach the limits of existing civil liberties 
        standards in this area. We will address those issues in the 
        planning phase and as they arise in the future.
         As geospatial imagery and derived products and 
        services are added to other data to form products for 
        dissemination throughout the information sharing environment, 
        civil liberties and civil rights concerns may arise. As these 
        products are developed, we anticipate that there may be 
        potential concerns related to access to those products, 
        retention of images or data, and the reliability of the data 
        and use of data. We will address those issues in the planning 
        phase and as they arise in the future.

Conclusion
    The Office for Civil Rights and Civil Liberties will work with the 
NAO to establish a firm and certain foundation that provides strong 
adherence to civil rights and civil liberties. We will closely monitor 
and address the areas I have mentioned and other issues that may arise. 
Building upon our success in civil rights and civil liberties 
compliance and training, and our track record of close cooperation with 
DHS components, we will work with the DHS Privacy Office, I&A, the 
Civil Liberties Protection Officer at DNI and the Privacy and Civil 
Liberties Oversight Board to protect and preserve civil liberties as 
NAO begins operations to help the government ensure the safety and 
well-being of our citizens.
    I thank you for inviting me to share our thoughts on the National 
Applications Office today, and I look forward to working with this 
Committee to provide oversight of this important program.

    Chairman Thompson. Thank you, Mr. Sutherland, for your 
testimony.
    I now recognize Mr. Teufel to summarize his statement for 5 
minutes.

STATEMENT OF HUGO TEUFEL, CHIEF PRIVACY OFFICER, DEPARTMENT OF 
                       HOMELAND SECURITY

    Mr. Teufel. Thank you very much, Chairman Thompson, Ranking 
Member King, members of the committee, Mr. Perlmutter from my 
home State of Colorado.
    I want to thank you for the opportunity to discuss the 
Privacy Office's efforts to protect privacy within the National 
Applications Office of the Department of Homeland Security, and 
I will be brief in my remarks.
    I want to assure the committee that the Privacy Office is 
engaged with the Assistant Secretary and his staff, and our 
colleagues in the Office of Civil Rights and Civil Liberties 
and with the Office of the Director of National Intelligence's 
Civil Liberties Protection Office to ensure that the NAO will 
operate transparently and in full compliance with all statutory 
and policy requirements, including privacy.
    As the NAO develops, we will continue to identify privacy 
risks and fashion protections to mitigate or eliminate those 
risks. The NAO prioritizes the protection of privacy and civil 
liberties. All activities of the NAO fall under existing legal 
authorities, including Executive Order 12333 and the Privacy 
Act.
    I want to stress, as the program stands today, there has 
been no collection, use, or maintenance of records about 
individuals as covered under the Privacy Act. Moreover, the 
Privacy Impact Assessment, PIA, of the NAO undertaken by my 
office and Mr. Allen's staff identified that the necessary 
safeguards were in place on the processes of the NAO providing 
appropriate privacy protections. Of course, we will continue to 
work with the NAO to see that NAO continues to establish and 
maintain privacy protections throughout the development and 
implementation of this new effort, and we will be vigilant in 
our oversight responsibilities to ensure continued compliance 
with privacy law and Federal policies regarding the collection, 
use, maintenance, and dissemination of records.
    Two other things I want to add. First is, the Civil 
Applications Committee is not something that was new to me. I 
served as the Department of the Interior's Associate Solicitor 
for General Law from June of 2001, July of 2001, until January 
of 2004. And as one of a handful of attorneys within the 
Solicitor's Office with SCI access, the CAC was one of my 
clients.
    Other than the use of National Technical Means for map 
making and environmental uses, there was an ad hoc approach to 
the use of NTM, with NGA attorney and programmatic oversight, 
but not much else. So I can tell you that with the movement of 
the CAC and these responsibilities over to the NAO, there is 
far greater and layered oversight than existed previously.
    Two, I want to stress to you, since I became the privacy 
officer at the Department, my office has increased focus on 
intelligence and the intelligence community. We have been 
working with INA and our colleagues over at CRCL since the 
beginning on intelligence issues. And, I want to note that as a 
matter of policy, not as a matter of law because Section 208 of 
the E-Government Act exempts the intelligence community, we 
notwithstanding that exemption as a matter of policy since the 
beginning of the Department, have as a matter of policy that we 
will conduct privacy impact assessments on activities of 
intelligence and analysis, and we did so in this case.
    Additionally, throughout my office everyone involved in any 
way with INA or the intelligence communities is undergoing 
intelligence training on law and policy. I, myself, have been 
through the Army JAG School's intelligence law course at 
Charlottesville and, in completion of my master's program at 
the Naval War College, am currently enrolled in an intelligence 
and homeland security course.
    So we take this very seriously, and we want to better 
understand the intelligence community so that we can do a 
better job of overseeing what it is that Intelligence and 
Analysis does generally and with respect to NAO.
    With that, I am concluded. Thank you very much.
    [The statement of Mr. Teufel follows:]

                 Prepared Statement of Hugo Teufel, III

Introduction
    Chairman Thompson, Ranking Member King, and Members of the 
Committee, I thank you for the opportunity to discuss the Privacy 
Office's efforts to protect privacy within the National Applications 
Office (NAO) of the Department of Homeland Security (DHS).
    I want to begin by assuring the Committee that the Privacy Office 
is engaged with Assistant Secretary Allen and his staff, our colleagues 
in the Office for Civil Rights and Civil Liberties, and with the Office 
of the Director of National Intelligence's (ODNI) Civil Liberties 
Protection Office to ensure the NAO will operate transparently and in 
full compliance with all statutory and policy requirements, including 
privacy. As the NAO develops, we will continue to identify privacy 
risks and fashion protections to mitigate or eliminate those risks. The 
NAO prioritizes the protection of privacy and civil liberties. All 
activities of the NAO fall under existing legal authorities, including 
Executive Order 12333 and the Privacy Act. I want to stress, as the 
program stands today, there has been no collection, use or maintenance 
of records about individuals as covered under the Privacy Act. 
Moreover, the Privacy Impact Assessment (PIA) of the NAO undertaken by 
my office and Mr. Allen's staff identified that the necessary 
safeguards where in place on the processes of the NAO providing 
appropriate privacy protections. Of course, we will continue to work 
with the NAO to see NAO continues to establish and maintain privacy 
protections throughout the development and implementation of this new 
effort, and we will be vigilant in our oversight responsibilities to 
ensure continued compliance with privacy law and Federal policies 
regarding the collection, use, maintenance, and dissemination of 
records.

The Privacy Office Interaction with Intelligence and Analysis
    The Privacy Office believes it is never too early for a component 
or program to engage our office. Programs operate effectively and 
privacy interests are best served when privacy protections are 
considered in the earliest stages of program or system development. We 
call our efforts to embed privacy into Departmental programs in the 
earliest stages ``operationalizing privacy.'' Frequent privacy 
training--at the time of hire and annually thereafter--active 
involvement in the technology investment review process, and issuance 
of our Privacy Technology Implementation Guide are just a few examples 
of the tools the Privacy Office uses to encourage operationalizing 
privacy within the Department. The Government Accountability Office 
(GAO) acknowledged our gains in this important goal during its recent 
review of our office. Still, in an organization as large as DHS, one of 
our biggest challenges is keeping abreast of individual programs in 
their very earliest moments of conception. We rely very heavily on 
components to seize upon the lessons of our outreach and notify us of 
their future plans, even if the contemplated use of PII is remote.
    My staff became part of the NAO's Policy and Legal Working Group in 
November 2006. The purpose of this working group was, and is, to advise 
the Director of the NAO and the implementation planning team on issues 
related to the formation and anticipated operation of this new 
Departmental initiative. The Privacy Office's role in the group is to 
ensure strict compliance with all applicable privacy law and policies.
    The most significant result of this initial, but limited, 
interaction was the issuance of the NAO Concept of Operations (CONOPS). 
The CONOPS commits the NAO staff to conduct their authorized functions 
effectively while ensuring that their activities affecting U.S. Persons 
are conducted in a manner that protects privacy and constitutional 
rights. The CONOPS further commits the Privacy Office, along with the 
Office for Civil Rights and Civil Liberties, to provide support and 
guidance to the NAO, and recommend steps to reconcile the need to use 
domestic information with the keystone requirement of protecting the 
privacy and civil liberties of U.S. persons. DHS will also assure any 
future updates to the NAO CONOPS are reviewed by the Privacy Office in 
accordance with Privacy Office guidance. The governance structure calls 
for the DHS' Director of Operations Coordination to review the program 
annually, including its compliance with privacy requirements, and 
includes our offices and our colleagues at the ODNI Civil Liberties 
Protection Office as advisors to the National Applications Executive 
Committee.
    The Privacy Office became more involved with NAO during the 
iterative PIA process. I&A and the Privacy Office worked together for 
several months to draft a PIA cataloging and documenting both potential 
privacy risks and the steps the Department will take to mitigate these 
risks.

The NAO Privacy Impact Assessment
    The E-Government Act of 2002 requires agencies to conduct a PIA 
when developing or procuring IT systems or projects that collect, 
maintain, or disseminate information in an identifiable form or about 
members of the public. The Department has pioneered the use of PIAs 
beyond what the E-Government Act requires in two ways which are 
relevant to our work with the NAO.
    First, the Privacy Office recognized that privacy can be impacted 
by offices, such as the NAO, policies, and rules of the Department, in 
addition to information technology. Therefore, as a matter of policy 
the Privacy Office conducts PIAs to examine these offices, policies, 
and rules, as well, even though it is not required to under the E-
Government Act. These PIAs examine the application of the Fair 
Information Practice Principles (FIPPs) to the policy or, in this case, 
the office. The eight FIPPs are rooted in the tenets of the Privacy Act 
and govern the appropriate use of personally identifiable information 
(PII) at the Department.\1\ They are:
---------------------------------------------------------------------------
    \1\ The Department's PIA Guidance defines PII as ``any information 
that permits the identity of an individual to be directly or indirectly 
inferred, including any information which is linked or linkable to that 
individual regardless of whether the individual is a U.S. citizen, 
lawful permanent resident, visitor to the U.S., or employee or 
contractor to the Department.'' Section 208 of the E-Gov Act requires 
agencies to conduct a PIA for systems which collect, maintain, or 
disseminate information in an identifiable form, which is defined as 
``any representation of information that permits the identity of an 
individual to whom the information applies to be reasonably inferred by 
either direct or indirect means.'' (P.L. 107-347)
---------------------------------------------------------------------------
        1. Transparency: DHS should be transparent and provide notice 
        to the individual regarding its collection, use, dissemination, 
        and maintenance of PII. Technologies or systems using PII must 
        be described in a SORN and PIA, as appropriate. There should be 
        no system whose existence and purpose is a secret.
        2. Individual Participation: DHS should involve the individual 
        in the process of using PII. DHS should, to the extent 
        practical, seek individual consent for the collection, use, 
        dissemination, and maintenance of PII and should provide 
        mechanisms for appropriate access, correction, and redress 
        regarding DHS's use of PII.
        3. Purpose Specification: DHS should specifically articulate 
        the authority which permits the collection of PII and 
        specifically articulate the purpose or purposes for which the 
        PII is intended to be used and shared.
        4. Data Minimization: DHS should only collect PII that is 
        directly relevant and necessary to accomplish the specified 
        purpose(s) and only retain PII for as long as is necessary to 
        fulfill the specified purpose(s). PII should be disposed of in 
        accordance with DHS records disposition schedules as approved 
        by the National Archives and Records Administration (NARA).
        5. Use Limitation: DHS should use PII solely for the purpose(s) 
        specified in the notice. Sharing PII outside the Department is 
        limited to purposes compatible with the purpose for which the 
        PII was collected.
        6. Data Quality and Integrity: DHS should, to the extent 
        practical, ensure that PII is accurate, relevant, timely, and 
        complete, within the context of each use of the PII.
        7. Security: DHS should protect PII (in all forms) through 
        appropriate security safeguards against risks such as loss, 
        unauthorized access or use, destruction, modification, or 
        unintended or inappropriate disclosure.
        8. Accountability and Auditing: DHS should be accountable for 
        complying with these principles, providing training to all 
        employees and contractors who use PII, and should audit the 
        actual use of PII to demonstrate compliance with these 
        principles and all applicable privacy protection requirements.
    Second, as a matter of policy, the Privacy Office conducts PIAs on 
national security systems, which are exempted from the requirement 
under Title II of the E-Government Act (Section 202(i)); although, 
consistent with the need to protect the processes associated with 
national security, the Privacy Office refrains from publishing these 
PIAs on our public facing website, www.dhs.gov/privacy.
    This broad use of the PIA beyond the strict requirements of the E-
Government Act is consistent with the Privacy Officer's authority under 
Section 222 of the Homeland Security Act of 2002 to assure that the use 
of technologies sustain, and do not erode, privacy protections relating 
to the use, collection, and disclosure of personal information. We have 
found that PIAs are an invaluable tool for programs to understand how 
their use of information impacts privacy. In addition, PIAs enhance the 
confidence the public has in the steps DHS takes to protect privacy. 
Thus, I was pleased to see GAO report that our office had made 
significant progress in both the number and quality of PIAs issued by 
the office.
    On June 15, 2007, the Department issued a PIA for the NAO. I&A 
shared it with various Congressional Committees, and I know this 
Committee has now seen it as well. The document is For Official Use 
Only and, therefore, was not made public--and I am limited in what I 
can say about it here. Nonetheless, the PIA examined the application of 
the FIPPs to the NAO as it is presently planned. At this time, privacy 
concerns are nominal because the NAO does not presently anticipate 
routinely using or maintaining PII. Should this change, all notice, 
comment and oversight requirements imposed by the Privacy Act, the 
Privacy Office, and, I'll add, the DHS Office for Civil Rights and 
Civil Liberties, will be strictly followed. This PIA, like every other 
issued by the Department, will be updated as often as is required. In 
fact, we anticipate issuing a new version of the PIA soon incorporating 
additional views; when the revision is complete, we will of course 
share it with this Committee.
    Finally, I want to note that in order to improve our ability to 
conduct privacy oversight for I&A, Privacy Office staff, including the 
Chief Privacy Officer, are undergoing training on intelligence law and 
the intelligence community, to better understand that community's 
mission and legal constraints. The Senate Select Committee to Study 
Governmental Operations with Respect to Intelligence Activities, the 
``Church Committee,'' and the report of the Rockefeller Commission, are 
all required reading in our office. We are mindful of the abuses of the 
past and we are determined that those abuses not be repeated at our 
Department.

The Privacy Office and Office for Civil Rights and Civil Liberties and 
ODNI's Civil Liberties Protection Office
    I am particularly pleased to be appearing today with the Officer 
for Civil Rights and Civil Liberties, Dan Sutherland. His office and 
mine share a statutory obligation to work together to ensure programs, 
policies and procedures involving civil rights, civil liberties, and 
privacy considerations are addressed in an integrated and comprehensive 
manner.
    Both Mr. Sutherland and I have strived to give maximum effect to 
this statutory obligation. In addition to our frequent consultation, 
our staffs have instituted bi-weekly calls to ensure the close level of 
cooperation contemplated by the Homeland Security Act. The NAO is 
another opportunity for our offices to work together and coordinate our 
policies relating to privacy and civil rights and civil liberties.
    Our office has developed a very close working relationship, as 
well, with our colleagues at the ODNI's Civil Liberties and Protection 
Office, which is charged with ensuring appropriate protections for 
privacy and civil liberties are incorporated in the policies and 
procedures of elements of the intelligence community within the 
National Intelligence Program, including DHS. I am pleased to be 
appearing today with Mr. Joel, who heads the ODNI's Civil Liberties 
Protection Office.
    Our combined efforts on training and oversight will be critical to 
the success of the NAO.

Conclusion
    The Privacy Office is committed to ensuring the NAO will be a 
success, both in terms of forwarding the critical missions of the 
Department and the United States Government to ensure the safety and 
well-being of our citizens, and equally in preserving the privacy 
protections the American public has a right to expect. I believe the 
NAO will not only preserve, but strengthen, these privacy protections.
    This will require close cooperation between my office, the Office 
for Civil Rights and Civil Liberties, Assistant Secretary Allen and his 
staff, the Privacy and Civil Liberties Oversight Board, and the Office 
of the Director of National Intelligence. Together we will provide 
guidance, train staff and program participants, facilitate outreach 
with the privacy and civil liberties advocacy community, and exercise 
our oversight role zealously. We will continue to monitor the evolution 
and operation of the NAO to ensure the use of PII is done so in 
accordance with all applicable laws and policies. We will update the 
PIA as necessary, and will, of course, be happy to report our findings 
back to this Committee at any time.
    I thank the Committee for this opportunity to testify about the NAO 
and its privacy compliance documentation, as well as the Privacy 
Office's role in moving the program forward successfully. I look 
forward to answering your questions.

    Chairman Thompson. Thank you very much. I would like to 
thank the witnesses for their testimony. I remind each member 
that he or she will have 5 minutes to question the panel. I 
will now recognize myself for questions.
    Mr. Allen, one of the concerns that I think you heard 
earlier this morning is that, at present, we have not or you 
have not developed the written policies for the implementation 
of this new program. And you further indicated that if that was 
not the case by October 1, you would in fact delay the rollout 
of this program. Is that still your opinion?
    Mr. Allen. Mr. Chairman, what I indicated is that we have 
been working on issues and the concept of operations. That has 
been finished and submitted, I believe, to Capitol Hill, 
including your office. We are working on guidelines, we are 
working on standard operating procedures.
    Chairman Thompson. Excuse me. I am not certain if we have 
that.
    Mr. Allen. If you don't, I was informed that you do, but I 
will verify that and get back to you, Mr. Chairman. But we do 
have a concept of operations. We are finishing guidelines and 
standard operating procedures, and looking at how to staff and 
stand up the organization. We think we can certainly meet the 
requirement that you all indicated that you wanted to have, a 
greater framework to understand the legal basis, which I think 
Mr. Teufel just spoke to at least in part, because we are not 
asking for new authorities or new forms of legislation, because 
this operates under the National Security Act of 1947, the 
Executive Order 12333, the Homeland Security Act of 2002, and, 
as Mr. Teufel said, under the Privacy Act we meet all those 
standards. We will give you that framework and the guidelines 
that we have developed, Mr. Chairman.
    Chairman Thompson. Thank you. I want you to understand that 
if the authorizing committee asked you today for the written 
protocol by which you will operate this program, we do not have 
it in a form that you can present it to us. Am I correct?
    Mr. Allen. I think we can provide that to you in short 
order, because we do have the concept of operations, we do have 
the privacy impact assessment. We operate, as you know, and we 
do have guidelines and SOPs. We can provide you with 
significant data.
    Chairman Thompson. I think it is important for you to 
provide this committee with all of the information that you 
propose to operate this program going forward. Do you have a 
timetable under which we can expect receipt of this 
information?
    Mr. Allen. We will provide you the concept of operations 
today. I thought your committee had it; and, if it doesn't, I 
apologize.
    Chairman Thompson. Now, just to talk about a few items 
associated with this rollout. Is it your understanding that the 
Privacy and Civil Liberties Oversight Board participated in the 
development of this National Applications Office?
    Mr. Allen. The Privacy and Civil Liberties Officer----
    Chairman Thompson. Not office. The board.
    Mr. Allen. The White House board. It is aware and has been 
informed of this particular National Applications Office and 
the fact it is to be stood up. Yes.
    Chairman Thompson. Well, if you will provide this committee 
with any communication associated with that board's 
notification and participation in the development of this 
project, in addition to the earlier requests, then I will be 
satisfied. There is some question as to whether they really 
know, Mr. Allen, and I want you to understand that.
    Mr. Allen. Thank you. We will take that for the record and 
get back to you.
    Chairman Thompson. Mr. Sutherland, since this program is 
about to be rolled out October 1, can you provide this 
committee with when you first participated in the review?
    Mr. Sutherland. Yes, sir. Our office was drawn in in late 
July.
    Chairman Thompson. Of this year?
    Mr. Sutherland. Of this year, yes, sir. Our colleagues at 
the DNI, the Civil Liberties Protection Office, were drawn in 
in the fall of last year. Our colleagues at the Privacy Office 
I know can speak to this more, but were more clearly involved 
as the spring came along, and we were drawn in the last few 
weeks.
    Chairman Thompson. Is your involvement at this point--just 
explain your involvement.
    Mr. Sutherland. Yes, sir. We have been extremely integrally 
involved over the past few weeks. We are working on helping to 
develop the standard operating procedures for the NAO. We are 
beginning to work on some of the legal and policy working 
groups that are going to be stood up as the executive committee 
begins. And so we have been working, getting briefings on the 
intricacies of the program both at NGA and at NAO, so we have a 
full understanding of the program and how it works.
    Chairman Thompson. Thank you very much. I think my concern 
is that, for the most part, the program was developed and 
presented to you before you were involved in it.
    Mr. Sutherland. I am sorry, sir. Again?
    Chairman Thompson. If the program was introduced in August 
and you first saw it in July, for all intents and purposes it 
was complete.
    Mr. Sutherland. If I could use a football analogy. We were 
brought in in the pre-season. The regular season is going to 
kick off October 1. We do believe, and Assistant Secretary 
Allen has said, we should have been brought in earlier. But we 
do have colleagues in the privacy and civil liberties community 
who were working on these issues earlier. But there is no doubt 
we should have been brought in earlier, but we are at a stage 
now where we feel comfortable we are able to make a large 
impact and really benefit the NAO with our expertise.
    Chairman Thompson. Thank you very much.
    I yield to the ranking member for questions.
    Mr. King. Thank you, Mr. Chairman.
    First of all, thank you for your testimony. It is my 
understanding that the conversation between you, Mr. Allen, and 
the concept of operations and privacy impact assessment were 
given to staff of the committee on August 17. I think this is 
the document we are talking about. But, in any event, I have it 
here.
    I have listened carefully to your testimony and I would 
like to know, is there anything that is going to be done under 
this program which has not been done ad hoc up until now or 
could have been done ad hoc up until now?
    Mr. Allen. Congressman King, there is nothing new in the 
sense we have done this in the past for homeland security when 
we have had hurricanes, disasters. The Civil Applications 
Committee is well established, and it still has to go through 
the whole review of NGA attorneys before any of its requests 
are acted upon.
    As far as law enforcement, we haven't begun that. We are 
going to stand up a working group between ourselves, DHS 
attorneys, DNI, and Department of Justice.
    So there is nothing new. It will be a broader customer 
base, I believe, once we are able to tell the nondefense 
community more about what might be available to support them 
for homeland security affairs. But the science applications 
will continue, and we hope to make them stronger than they are 
today.
    Mr. King. Now, has this been shared with law enforcement 
before?
    Mr. Allen. There is a Legal Law Enforcement Working Group 
that is standing up of Justice, the Director of National 
Intelligence, and the Department of Homeland Security. They are 
aware of it and they are looking at applications. As you know, 
we have on an ad hoc basis the National geospatial Intelligence 
Agency under the egress of both the DCI and now the DNI and has 
supported the Secret Service, supported the FBI in certain 
applications. But those have been for national security events 
where geospatial imagery can be of assistance in helping 
protect major events.
    Mr. King. My understanding was, when we had the D.C. 
snipers 5 years ago, wasn't this program used then?
    Mr. Allen. Yes. Congressman King, I was requested by the 
Director of Central Intelligence, George Tenet at the time, 
acting on a request from Director Mueller, to image the 
interchanges between Pennsylvania and North Carolina, because 
of the killings that could occur and had occurred along the 
interstate, because the Bureau wanted the National Geospatial 
Intelligence Agency to outline the sites, places where snipers 
might hide. It was used, and Director Mueller, as I recall, was 
very gratified.
    Mr. King. I am trying to determine whether constitutional 
issues may arise here. Is there any thermal imaging involved in 
this program?
    Mr. Allen. As far as----
    Mr. King. As far as being able to penetrate residences.
    Mr. Allen. No. We will not penetrate residences. This is 
not going to penetrate buildings. There can be some infrared 
collection of space to look at forest fires, hot spots. We have 
used this to support the National Fire Service for decades. 
This was used long before the proposal was made to establish a 
National Applications Office.
    Mr. King. If I could ask then, Mr. Sutherland and Mr. 
Teufel, both of you, is there any Supreme Court case on point 
involving a fourth amendment issue which would pertain to 
anything which would come under this program?
    Mr. Sutherland. We are----
    Mr. Teufel. Coordinating.
    Mr. Sutherland. --coordinating our thoughts on the Supreme 
Court litigation. There is Supreme Court litigation that sets 
the parameters under which we will evaluate the program. There 
was the Supreme Court case a few years ago on thermal imaging 
that you are talking about. But, to date, we have seen nothing 
that implicates that litigation. I mean, that litigation and 
those decisions lay the contours, the parameters under which we 
will evaluate the specific requests that are made.
    Mr. Teufel. There is the CAC's decision about the language 
with reasonable expectations of privacy, and there is well 
established case law on when law enforcement can fly over in 
air space and take pictures. But understand that, while we are 
both lawyers, we are not practicing as lawyers currently in our 
positions.
    Mr. King. I guess I am getting at, there has been talk 
about spies in the sky and spying and snooping and everything 
else. But I am just wondering if there is anything under this 
program which has not been done for at least 30 years under 
both Democrat and Republican administrations, for instance, 
whether it is in organizations, whether it is hurricanes, which 
as I see it is what you are going to continue doing but now it 
is going to be more consolidated and more coordinated.
    Mr. Allen. Yes, Congressman King. We use it for border 
security. We are trying to determine how best to employ its 
capabilities. For border security, for seaport security, 
critical infrastructure it is very helpful, and for national 
security events it has been used rather prolifically in the 
past, as well as natural disasters, including fighting fires 
and earthquakes. And, of course, it was used immediately after 
September 11. Within a half an hour, using a sensitive 
capability, we could see the extent of damage in New York City.
    Mr. King. Thank you, Mr. Chairman.
    Chairman Thompson. Thank you very much.
    Ms. Harman has agreed to start our questioning after we 
recess and come back. The plans will be, after the two votes, 
about 5 minutes after the last vote, to reconvene. So we will 
recess the committee.
    [Recess.]
    Chairman Thompson. We would like to reconvene the recessed 
hearing. The next questioner will be Ms. Harman from California 
for 5 minutes.
    Ms. Harman. Thank you, Mr. Chairman.
    Welcome to our witnesses. I have worked with each of you 
over some period of time and I appreciate your service, and I 
surely am grateful you are in the positions you have.
    Having said that, I am about to deliver as sober a message 
as I know how to deliver. Number one, I represent satellite 
central. My district in California is where most of our defense 
satellites are designed and built. I know a lot about 
satellites. I spent 8 years serving on the House Intelligence 
Committee, 4 years as Ranking Member, and I know their 
capabilities and I know that their capabilities are evolving 
and it is very serious business to use satellite feed for 
domestic purposes. And it not only serious right now, but 6 
months from now the capabilities will evolve further, and we 
will be able to do more and more. And obviously I am not going 
to discuss that in a public setting. That is my first point.
    My second point is, Charlie Allen, you said this is nothing 
new, it is just a broader customer base. Well, that is new, a 
broader customer base. Requests from customers to use materials 
that are ever more sensitive, for purposes that we may not even 
understand yet, is new. That is not old. That is new. And 
sharing information with this broader customer base provides 
all kinds of issues about privacy and civil liberties of 
Americans that weren't there before and that is new. That is my 
second point.
    My third point is I have listened up and, as best as I can 
tell, our two privacy and civil liberties witnesses were not 
cut into this until this year, July of this year. This program 
may have been shared with others last year. I know that the 
origins of it were 2005. And I am surely not saying that it is 
a bad idea to have a program, but privacy and civil liberties 
concerns apparently were an afterthought. And I understand that 
we have in this committee some kind of a privacy document which 
those who have read it--and I am not one of those--think is not 
an adequate document. So that is my third point.
    My fourth point is that just telling us that Executive 
Order 12333, the 1947 National Security Act, the Homeland 
Security Act of 2002, and the Privacy Act cover this program is 
not telling me anything. I am a trained lawyer, as some of you 
are, and some of our other members are, and I want to see the 
legal document that puts the clear, bright legal framework 
around this program and is speaking for me. I do not think it 
should proceed. I oppose the idea that it would become 
operational until we have that framework and have a chance to 
review it. I am not talking about delaying unnecessarily. But I 
am saying that the right way to do this is for Congress--which 
passes the laws of the United States and protects the 
Constitution, to review carefully the legal framework for what 
I consider to be a new program before it is rolled out.
    And finally, we are dealing in a context here. And the 
context is--and I speak as someone truly aggrieved that this 
administration, post 9/11, rolled out the terrorist 
surveillance program, decided unilaterally; it would not comply 
with FISA, something I didn't learn until years afterwards, and 
has been making security policy in the executive branch without 
full regard for the laws that Congress has passed. I think that 
is unacceptable. And that is my context.
    So what I worry about is that even if this program is well-
designed and executed carefully by all of you, and I take you 
as a man of good faith, that someone, somewhere else in the 
administration, could hijack it and use it for other means. I 
worry about it in this administration and I worry about it in 
the next administration.
    And to remind people who may have a short view of this, 
there will be another administration. The President may be of a 
different party, and I think some folks who just say the 
executive branch should have all the power it needs are 
forgetting that they may be giving power to a new Democratic 
administration and they may rue the day that they did that.
    So my time is almost out. My lecture has abated. But I have 
just one question. Has anyone focused on Posse Comitatus and do 
you know that this program, as you conceive it, will comply 
with the Posse Comitatus Act?
    Mr. Teufel. Ma'am, again while I am an attorney, I am not a 
practicing attorney. Neither is Dan. My understanding is that 
the lawyers have looked at the Posse Comitatus issue and that 
it is nonviolated. Again I am speaking as a nonpracticing 
lawyer here.
    Ms. Harman. My time has expired, Mr. Chairman, I made my 
point clear. But I would like to see that answer amplified by 
someone----
    Mr. Teufel. Yes, ma'am.
    Chairman Thompson. Well, I think, Mr. Allen, can you 
provide the committee with a response to Ms. Harman's question?
    Mr. Allen. We will certainly respond to that question and 
also give her the assurances of the legal framework and also 
how the various concept of operations, guidelines, privacy 
impact statement--which I think you already have--and the 
processes by which we will operate. I understand the concerns, 
but we believe that we are ready to operate this particular 
program starting on 1 October. Otherwise, it will--under ad hoc 
basis, I think you would want more layered oversight than what 
we currently have.
    Chairman Thompson. Thank you very much. Ms. Harman, do you 
want to make a comment?
    Ms. Harman. My comment is, Mr. Chairman, that with respect, 
I don't find that answer satisfactory. I think this committee 
should insist on reviewing the legal underpinnings of the 
program and satisfying ourselves that this is being done 
properly. And I say this on a bipartisan basis, this is the 
leverage we have. We let this thing go, it may be another blank 
check to the Executive, it may morph into things that will 
terrify you if you really understand the capabilities of 
satellites, and I for one would strongly oppose letting this 
proceed without doing that careful review as quickly as 
possible.
    Chairman Thompson. Thank you very much. And I want Mr. 
Allen to understand that I made the request; Ms. Harman has 
made the request again. There is still significant discomfort 
on the committee that we don't have enough written policies by 
which this program is scheduled to begin October 1. And that is 
an absolute unreadiness that I hope you hear from us in this 
hearing. And we will before the end of the day provide a 
written letter expressing similar unreadiness on the 
committee's part.
    We are now yielding 5 minutes to the gentleman from 
Pennsylvania, Mr. Dent.
    Mr. Dent. Thank you, Mr. Chairman. And I know Ranking 
Member King talked about Supreme Court decisions. I would like 
to follow up on what he talked about. As you gentlemen know, 
some courts have ruled that the heat signatures emanating from 
a public residence are protected by the fourth amendment. And 
in Virginia, as an example, courts have held that utilizing 
forward-looking infrared radar to detect the excessive heat 
detected by marijuana-growing operations as the basis for 
establishing probable cause to search that particular home is 
improper.
    I know that you are not dealing with infrared or heat 
sensors. Given that example, what kind of safeguards will the 
NAO have in place to ensure that law enforcement agencies 
requesting technical assistance in surveillance are complying 
with the existing State and Federal court decisions regarding 
the fourth amendment--particularly State court decisions which 
I think is more operable here.
    Mr. Sutherland?
    Mr. Sutherland. Thank you. Just to understand the process I 
think will help. A request comes in for someone to use one of 
the products or services of the NGA. It will now come into the 
NAO. Within the NAO, located within the Department of Homeland 
Security Intelligence and Analysis Directorate, there will be 
attorneys who review it. There will be a privacy officer and an 
officer for civil rights and civil liberties who will have 
oversight of that. So there will be that filter.
    The case law that you are referring to will be a 
significant part of that filter, as well as other case law in 
other areas. It wouldn't necessarily raise a fourth amendment 
issue; it could raise other issues. If our internal analysis 
decides that that is a request that does meet the proper use, 
we would then forward it to the NGA, and the NGA has another 
distinct and robust set of measurements and analysis that they 
do and have been doing for many, many years.
    So what Assistant Secretary Allen is saying is that by 
bringing the NAO to DHS, which DHS has the unique capabilities 
of a privacy officer and an officer for civil rights and civil 
liberties, you are adding additional layers of review onto that 
analysis of whether that is a proper use of the system. So NGA 
is a robust way to look through the issues and our Department 
will have that as well.
    Mr. Teufel. I would like to expand on that. NGA has the 
proper use memorandum, PUM, process. When a request comes into 
NGA, as we understand it, NGA conducts a legal and policy 
review and establishes controls on the information that will be 
collected. And if a request is approved, the PUM will specify 
what can be collected, who can receive the raw data, how it is 
to be stored, how it can be used and who will receive the final 
product. So at the NAO, the collection manager will review 
existing PUMs and say, okay, I have a current request; does it 
fall under an existing PUM? If not, a new PUM is requested and, 
as I understand it, NGA has denied PUMs in the past for various 
reasons. If it falls under a PUM, then the collection manager 
will go to NGA under the PUM and make the request.
    Mr. Allen. I would like to add to what Mr. Teufel said, is 
that the Civil Applications committee falls directly under the 
same rules and restrictions, even though it has operated for 30 
years, and on occasion they have redirected some of the civil 
application committee requests to make sure they are in 
accordance with the proper use of that request.
    Mr. Teufel. When I was at Interior, we did not review CAC 
requests the way we at DHS will review NAO and CAC requests. It 
is far more robust oversight than existed previously.
    Mr. Dent. I guess my next series of questions--and I will 
try to be quick--will be directed to Secretary Allen. I guess 
the main question I have: Is there a risk of overloading our 
intelligence communities with requests from various civil 
authorities, and what happens if the NAO receives too many 
applications for assistance, and how do we process these things 
timely?
    Mr. Allen. That is a great question because the process we 
have today is ad hoc. If there is competition, NGA has to make 
that decision sort of as the requirements flow in. Now we have 
a more ordered process to look at the needs of the customers. 
And then one of the good things, this is a clearinghouse. The 
NAO is a clearinghouse and sets--not only looks at the needs, 
but establishes priorities so we don't overburden these 
classified capabilities that are used almost entirely for 
foreign collection.
    Mr. Dent. How long do you think--how much time would it 
take between the time of the request being submitted to the 
actual time of return of the requested information to the civil 
authority? Do you have any idea?
    Mr. Allen. If it is a research type of effort that the 
Civil Applications Committee--it could take days, weeks or 
months. If it is in extremis, as we did when the World Trade 
Center was struck by airplanes, that was in extremis and was 
done in matter of a few minutes. But as a general rule, it is 
going to take--it is a very deliberate, considered type of 
action. It can take days, certainly weeks and months if it is a 
research type project.
    Mr. Dent. Thank you, gentlemen. I yield back.
    Chairman Thompson. Thank you very much. We now yield 5 
minutes to the gentleman from Texas, Mr. Green.
    Mr. Green. Thank you, Mr. Chairman. I thank you and the 
Ranking Member for your opening comments. I thought they were 
very insightful.
    I would also like to thank these fine men for the service 
they are rendering to their country.
    Friends, if I may, I would like to share with you briefly 
this thought. This country was founded, in part, because of the 
unfetterred access that the king's men had to our property, to 
our papers; and it was that unfetterred access that caused 
people to venture across the ocean and come here so that they 
could establish a system that would give them the kind of 
privacy that we enjoy to this day.
    The Founding Fathers were really brilliant men and--well, 
of course, there were some women involved--who understood the 
need and necessity for a fourth amendment. The Supreme Court 
has held in Kyllo versus the U.S. that thermal imagery is 
subject to the fourth amendment. The fourth amendment really is 
kind of the cornerstone, if you will, of the home being the 
castle. If we allow the unfetterred access by way of satellite 
technology, which is unchartered space for us, we really don't 
know exactly where this will end. We know where we are. And if 
we allow it based upon custom and tradition, meaning we have 
always done what we are doing, we allow it based upon the 
notion that we have in-house people who will review this and 
our in-house people will tell us whether we are making mistakes 
or not, I think we are making a mistake.
    It is not a question of whether it has been done before. 
The question is whether what was done before was 
constitutional. The question is whether what will be done is 
constitutional. So we are at a point where, in my opinion, we 
have to ask ourselves, do we have the kinds of checks and 
balances that the Constitution envisions, not the kinds of 
checks and balances that the executive branch envisions?
    We just found that Dr. King's wife, Mrs. King, was being 
surveilled unconstitutionally by the executive branch. We have 
discovered that a Congressperson had his papers taken from his 
office unconstitutionally. The question is: Is this 
constitutional and are there checks and balances as envisioned 
by the executive branch? To have the NGA under the executive 
branch--and let me pause for a second and get this on the 
record--is the NGA under the executive branch? Does everybody 
agree that it is?
    Mr. Allen. Yes.
    Mr. Green. All right. If the NGA is under the executive 
branch, it is not comparable even to the FISA courts. It is at 
best an executive remedy. The constitution requires a broader 
remedy that envisions the judiciary being a part of something 
as pervasive as what we are capable of doing with the 
satellites. My question is: Why don't we have the NGA or 
something comparable to the NGA under another branch of 
government? This is kind of the clearinghouse; do you agree?
    Mr. Allen. I believe, sir, you are talking about the 
National Applications Office.
    Mr. Green. No. The National Applications Office, as I 
understand it, it will go to the NGA and the NGA will review 
and approve the collections of information. Is this not true?
    Mr. Allen. That is not exactly the way it will work. 
Because the National Application's Office, working with both 
civil agencies, science agencies, as well as the Homeland 
Security and potentially law enforcement----
    Mr. Green. If I may, sir, please. Let me abridge your 
comments. Will not the National Applications Office receive the 
request?
    Mr. Allen. They will receive the request and it will 
prioritize it.
    Mr. Green. If I may, please. Will not the National 
Applications Office then take the request to the NGA?
    Mr. Allen. After explicit, significant legal review.
    Mr. Green. Yes, but they take it to the NGA. And will not 
the NGA then give a yea or nay?
    Mr. Allen. Another review, yes. If there is a difference, 
it will be resolved between the two organizations.
    Mr. Green. A rose by any name--that which we call a rose by 
any name still smells just as sweet. Call it NGA, call it 
National Application; either office is under the auspices of 
the executive, true?
    Mr. Allen. Both offices will fall under the executive 
branch.
    Mr. Green. That creates a great amount of consternation in 
the minds of constitutional scholars. I believe it does. Why 
not have NGA--or if we want to talk about the National 
Applications Office, why not have this under the auspices of 
the judiciary, something comparable to FISA? Probably I 
shouldn't say comparable to FISA, but something--something 
comparable to what FISA was envisioned to be. Why not have it 
on the judiciary? The President appoints these FISA judges. Why 
can't we have some other entity outside of the executive to 
perform these as a clearinghouse?
    Mr. Allen. I believe that no other element can really 
understand the customers or----
    Mr. Green. I beg to differ.
    Mr. Allen. --or priorities.
    Mr. Green. I beg to differ. If you are saying there are not 
other people that have the intelligence and intellect to 
understand the Constitution of the United States of America, 
then we need to do away with the Supreme Court.
    Mr. Allen. That is not what I said. You didn't let me 
answer.
    Mr. Green. Let me give you more time.
    Mr. Allen. There are limits to physics. What we have is an 
application for civil and homeland security purposes. And the 
National Applications Office is going to bring into order and 
focus already existing processes. It will have a broader 
customer set, as Congresswoman Harman noted, but it will all be 
done in accordance with the Constitution, in accordance with 
the laws, and there will be checks and balances.
    Mr. Green. If I may, please, sir. I have to intercede 
because I have little time. It will be done according to the 
executive branch's interpretation. And that, many times, will 
conflict with the Constitution, which is why you have another 
branch to give another opinion that can supersede the executive 
branch's interpretation. Listen, I am imploring, I beseech you, 
I beg that you please give some consideration to the notion 
that we need a third branch of government or another branch of 
government involved.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    Chairman Thompson. Thank you, gentlemen. The time has 
expired. Mr. Allen, I hope you get the understanding that the 
committee desperately needs the guidelines under which this 
program is expected to be implemented. And the discomfort you 
continue to hear is the lack of information that we have, and I 
think you will hear it throughout the hearing.
    I yield 5 minutes to the gentleman from California. Mr. 
Lungren.
    Mr. Lungren. Thank you, Mr. Chairman. This is a most 
interesting hearing and I appreciate what the gentlemen at the 
table are attempting to do, and I appreciate what members of 
this committee are attempting to do. But let us see if we can 
clarify this a little bit.
    On the fourth amendment questions. In Florida v. Riley, the 
United States Supreme Court said that surveillance by 
helicopter at 400 feet did not implicate the fourth amendment 
because anybody could be flying over at--a plane could fly over 
and observe things.
    In the Dow chemical v. U.S. case, where it was a business 
that they were talking about, aerial photography over chemical 
company complex, they found it was not a fourth amendment 
search. But Justice Burger, Chief Justice, said this: It may 
well be, as the government concedes, that surveillance of 
private property by using highly sophisticated surveillance 
equipment not generally available to the public, such as 
satellite technology, might be constitutionally prescribed 
absent a warrant, but the photographs here are not so revealing 
of intimate details as to raise constitutional concerns.
    It appears that the courts have viewed even sophisticated 
aerial photography from satellites is not implicating the 
fourth amendment because you are using enhanced techniques, but 
you are basically doing what you could do if you were flying a 
bit lower, and protecting yourself by being at a higher level. 
But--wait a second. The question that comes up is with thermal 
imagery, because in the Kyllo case that the gentleman 
suggested, in an opinion written by Justice Scalia, they talked 
about--this is a law enforcement case using thermal imagery in 
a law enforcement investigation against a home. And we were 
talking about the right of privacy really implicating itself 
when you are talking about a home.
    So I guess my question is this: Are all three of you 
agreeing that this program does not send it to thermal imaging 
of homes? Would that be correct?
    Mr. Allen. That is my view. As I said, we can use infrared 
in a broad sense to look at forest fires and hot spots, but not 
homes. There is a huge difference.
    Mr. Lungren. You are using infrared and those sorts of 
things to look at hot spots. The idea of thermal imaging to 
penetrate a house is to see--in cases we had in California when 
you are dealing with marijuana, you were trying to find out 
whether marijuana grows there. The courts basically said, 
absent a warrant, you couldn't do that. You could actually get 
a warrant to find out the electrical bills of a company and 
look at it that way, but still you had to have some basis to 
get it. But the idea was that somehow that imagery allowed you 
to penetrate the walls and see people.
    That is different than finding hot spots to locate the 
presence of fires or look at agricultural grows and those sorts 
of things. And that is all that I want to make sure we are 
doing. Because when I saw the article that appeared in the New 
York Times, and they are talking about spy satellites being 
used domestically, the idea was we were violating the fourth 
amendment. But if what you are telling us is what you had done 
before, where we use sophisticated technology, we enhance the 
view that we get from satellites so that we can see what can be 
seen by the eye if you were there at a lower elevation, that is 
one thing. And that doesn't bother me because that passes the 
test. I mean, it passes the Supreme Court test in every single 
situation. But the specter has been raised by the headlines to 
suggest that you are going to spy on people in their homes, 
violating my-home-is-my-castle doctrine which underlies, 
really, the basis of the privacy protections in the 
Constitution.
    I think that is where you have members very concerned. And 
if you could be very explicit in your rules that that is not 
what you are doing, I think you resolve a lot of the problems 
we have here. And the American public then realizes we are not 
talking about looking into your bathroom, we are not talking 
about looking into your bedroom. We are talking about things 
that are otherwise visible if you were there in closer 
proximity. That is all I am trying to get from you.
    Is that your understanding and will that be incorporated in 
the documents that you have that we will be able to review?
    Mr. Allen. That is well understood, and we can demonstrate 
that that is the case, that we are not here, it does not 
penetrate buildings, it does not penetrate homes. This is to be 
used in a much broader sense as you have described. And the 
differentiation is very significant. I will let Mr. Teufel----
    Mr. Lungren. Is there anything I said that you disagree 
with?
    Mr. Teufel. No, absolutely not. If the national technical 
means were to be used in that fashion and there were not a 
warrant, as required under the fourth amendment of the United 
States Constitution, my colleague, Dan Sutherland, and I would 
be racing over to see Charlie Allen to talk to him about the 
improper unconstitutional use.
    Mr. Lungren. That is incorporated in the principles that 
you have in the documents that you are bringing forward; is 
that correct?
    Mr. Teufel. And it is also part of NGA's PUM process. And 
NGA would not allow such an inappropriate, improper use of the 
satellites.
    Mr. Lungren. But it is part and parcel of the documentation 
that you have that regulates this program and that we are going 
to have a chance to look at; is that correct?
    Mr. Teufel. The Constitution of the United States, sir.
    Mr. Lungren. I am talking about the principles laid out in 
the way you are going to operate.
    Mr. Sutherland. If I can say, the concept of operations 
incorporates that. Yes, we are working on standard operating 
procedures for--they are in draft form, yes. And the executive 
committee, as it forms, and the working groups that come from 
it will incorporate all of this. So the answer is absolutely 
yes.
    Mr. Lungren. Thank you very much. Thank you, Mr. Chairman.
    Chairman Thompson. Thank you. But the point, for the 
committee's sake at this point, is that at present there is no 
such approved document that guarantees just what Mr. Lungren 
said, other than the Constitution of the United States?
    Mr. Sutherland. Chairman Thompson, right now there is a 
concept of operations document that is set final, and I believe 
it has been provided to staff. But this is what Secretary Allen 
was saying earlier. He will make sure that is in everybody's 
hands by the end of the day. But in the upcoming weeks, we have 
a standard operating procedures document and other documents 
like that. And as I think we have been saying, we clearly need 
to be working with the committee, as we form those, in giving 
you visibility on this to give everybody the level of comfort 
that they need to have.
    Mr. Allen. That is correct. We provided, I believe, the 
concept of operation on the 17th of August. As you know, we 
also worked with the Intelligence Committees to ensure they had 
no concerns, and briefed them as well as the appropriators. So 
you need to have more materials to satisfy your needs.
    Chairman Thompson. Excuse me. You briefed the appropriators 
but not the authorizers. I think that is the point. And 
whatever documents we have received, we got them from the 
appropriators. We did not get them from the Department.
    Mr. Allen. We did brief the HIPC, which authorizes my 
budget, since it falls under the national intelligence program. 
We did not brief you from an oversight perspective, and I have 
apologized for that.
    Chairman Thompson. Well, the standard operating procedures 
are yet to be received by this committee. And I think until we 
receive those documents by which this program is to go forward, 
it is not in the best interest of any of us for that October 1 
to come with you implementing that program.
    I yield 5 minutes to the gentleman from Colorado, Mr. 
Perlmutter.
    Mr. Perlmutter. Thanks, Mr. Chairman. I really don't have 
that many questions. It is more of a statement, and I apologize 
for missing a number of the questions that you have been asked. 
You three gentlemen come to this committee--and I think the 
committee and I know I hold all of you in high regard. And the 
real disappointment has been we feel like you have gotten the 
cart before the horse, that this thing really has--is a fait 
accompli--and some of the others may have said this-before you 
really took time, in our opinion, to look at the privacy issues 
that come with this.
    And, Mr. Teufel, it is a big difference between going from 
the Interior Department and the U.S. Geologic Survey to the 
Intelligence Department of Homeland Security. There is a major 
shift in emphasis just by going from one place to the other. 
And if it is only that, these protocols and procedures have to 
be in place.
    And the fact that we are the last people to hear about it, 
as some of you in the Privacy Department of the Homeland 
Security were, that is the problem. And and some of these 
things, as Mr. Lungren has said, and I think Mr. King too, have 
been going on a long time, whether it is for Hurricane Katrina 
or maybe a national security event.
    So we need to know, though--and there may be instances, Mr. 
Allen, where you might want to be able to view into a home with 
infrared. But obviously if that is the case, we want to have 
some procedures that comply with the Constitution.
    And it isn't just the courts that set those parameters as 
to what the first amendment means or the third amendment. I 
mean, everybody talks about the fourth amendment, the 
warrantless,--the need for warrant. But the third amendment 
says you are not going to have government in your house, 
period, except during times of war.
    And my comment--and I guess how in the future, Mr. Allen, 
can--as you develop new programs, can you include the privacy 
side of the Department earlier on and contact us earlier on? I 
am on the Intelligence Committee of this committee and really 
hadn't heard anything about it until we got the papers a few 
days ago.
    Mr. Allen. And I appreciate, Congressman, your concerns. 
And as I said, the legal framework, the guidelines, the 
procedures, the protocols, we have a good number of them in 
place and I think they will meet your needs and requirements. 
One of the things that came very late, of course, was the 
Director of National Intelligence letter of designation which 
put into motion full planning back in June. We only received 
the actual letter of designation that the Secretary of Homeland 
Security will be the executive agent in June. So we had done 
some preliminary planning, but now we are doing it full bore.
    So part of it is catching up with the fact that now we are 
working with the Civil Applications Committee, the Department 
of Interior, the U.S. Geologic Survey and others. We had set a 
tentative date to begin operation around 1 October. We advised 
the appropriators of this and they have provided us with 
reprogramming so we can spend some dollars to get ready for 
this.
    But I understand your concerns, procedures, protocols, 
guidelines. We certainly will give you the legal framework 
which we have outlined already. But this has been probably one 
of the most reviewed programs, certainly, in the executive 
branch. That has been my experience. But I understand your 
concern.
    Mr. Perlmutter. Thanks, Mr. Chair.
    Chairman Thompson. Thank you very much.
    We now yield 5 minutes to the gentleman from Washington, 
Mr. Reichert.
    Mr. Reichert. Thank you, Mr. Chairman. Thank you all for 
being here. It is good to see all three of you again.
    I just want to follow up on some of the same discussion and 
conversation you have heard here this morning already. First, 
Mr. Allen. Was it an oversight on your part not to include the 
civil rights and civil liberties and chief privacy officer 
until later on in the process, or was that----
    Mr. Allen. We had the DNI's civil rights and civil 
liberties officer involved in November of 2006 when we started 
talking about the fact that this could come to Homeland 
Security with a letter of designation which we didn't have at 
the time, and Mr. Teufel, I believe, had an officer with that 
working group. We got the letter of designation and, of course, 
the civil rights, civil liberties, and Mr. Teufel did a privacy 
impact statement this spring and early summer. So I think we 
have worked very much, as these gentlemen have stated, in close 
cooperation and collaboration with both officers.
    Mr. Reichert. Mr. Sutherland testified that he came into 
the process in July. Do you agree, Mr. Allen, he should have 
been brought into the process earlier?
    Mr. Allen. In retrospect I think that would have been the 
case. But we have worked cooperatively on all issues with Mr. 
Sutherland.
    Mr. Teufel. Sir, if I may. I had the opportunity to speak 
with Alex Joel, who is the civil liberties protection officer 
over at ODNI. I know what my office's timeline was and I wasn't 
quite sure what his was. Alex Joel became aware of this process 
back in October of 2006. And in November of 2006, a member of 
my staff participated in a working group or the entity that was 
brought together to look at this. And both Alex and my staff 
were aware that at the very beginning, back in November or 
shortly after November 2006, put into the documents is the 
privacy officer and the civil rights and civil liberties 
officer must be working--we must be working with them on this 
to ensure that we protect privacy and civil liberties.
    Now, my office got more heavily involved with the NAO in 
spring of 2007, and for a period of time--I want to say between 
1 and 2 to 3 months--my office worked with the NAO and INA to 
put together this privacy impact assessment.
    Mr. Reichert. Would you disagree with the member of the 
second panel that has provided testimony that you were 
marginalized in this process?
    Mr. Teufel. I haven't seen that testimony.
    Mr. Reichert. Do you feel you were marginalized in this 
process?
    Mr. Teufel. No, not at all. Since I have been in the 
office, I have done a great deal working with Charlie and folks 
on his staff to get the privacy office more deeply involved 
with the things that INA is doing so that we can be there early 
and often to make sure the privacy protections are in place.
    Can we do better? We can always do better. But I have got a 
very good close working relationship with Charlie Allen and his 
staff, as does Dan. Dan and I worked together very closely, as 
we do with our colleague over at ODNI, Alex Joel. So I would 
disagree that my office--and, for that matter, Dan's office--
has been marginalized.
    Mr. Reichert. Can you explain to me, then, what the process 
is when you do witness a violation? What happens?
    Mr. Sutherland. Congressman, we deal with issues that cover 
the whole gamut of the Department of Homeland Security and the 
homeland security efforts. So we deal with them essentially the 
same. We go to the people responsible for the program and 
explain our views on why they might shape the policy in a 
different way. If we are--Hugo and I both talked about this 
publicly. If we feel that there are major concerns, I report 
directly to Secretary Chertoff. I have great relationships with 
Assistant Secretary Allen and his peers in the Department, and 
we talk regularly. So we would go directly to senior officials 
and raise these issues.
    Mr. Reichert. Your investigative policy would be put 
forward, you would investigate the issue and come out with a 
finding?
    Mr. Teufel. Sure, if necessary. If there is a problem, 
typically it is resolved at the staff level. If it were to get 
to me, and, I assume probably also with Dan, I am going to make 
a phone call to the principal or that principal's chief of 
staff within the Department to say, hey, we have got an issue 
here we need to address. Around the same time, I am going to be 
in contact with the general counsel's office to let them know 
there may be a legal issue that needs to be addressed. If it 
doesn't get resolved then--and it has never been the case that 
we haven't resolved an issue when we have been speaking with 
the component head--then I am going to the Secretary and the 
Deputy Secretary with my concerns.
    Mr. Reichert. If I may, Mr. Chairman, one last question, a 
simple question. Does moving the Civil Applications Committee 
from the Department of the Interior to the National 
Applications Office within Homeland Security create new risks 
to the privacy and civil liberties of U.S. citizens?
    Mr. Allen. I will let my colleague speak. But we are going 
to continue the same processes, only with greater layers of 
review from the Civil Applications Committee. My commitment to 
the CAC, as it is known and been known for many years, is to 
give it robust support so that it--scientific research, 
particularly on things like climate change and environmental 
damage can be continued. They have done some great work. The 
CAC needs stronger support, and I intend to give them that and 
I will let my colleagues talk about the civil rights/civil 
liberties aspects.
    Mr. Sutherland. Congressman, we believe there are 
additional layers of review and analysis that are brought to 
bear with this new structure. That did not exist before. 
Protections, procedural protections that are in place. 
Certainly when you expand the customer base, there are going to 
be novel--I presume there will be novel requests for use of the 
technology. That is the reason why it is great to have the 
increased scrutiny that the NAO brings.
    The Department of Homeland Security is unique in the 
Federal Government in that we have a chief privacy officer who 
sits in the position, and with the authorities that Hugo does, 
and officer for civil rights and civil liberties. We are a 
unique department in that sense and that is one of the values 
of having the National Applications Office within this 
Department.
    Mr. Reichert. If I may just comment quickly, Mr. Chairman. 
I appreciate your testimony and I do share the same concerns 
that the rest of the members of the committee have shared with 
you, but I do have a great amount of faith in your abilities to 
protect our Constitution. But I do think that the oversight, as 
Mr. Allen and others have said, and the access to that report 
would be a great asset for us.
    I have personal experience in asking for assistance from 
the Secret Service and the FBI--in some of this technology that 
you talk about--back in the mid-1980s and it was denied to 
local law enforcement, the sheriff's office that I happened to 
be the sheriff of back in Seattle. So I know there is some 
oversight there. At least back then. And I am certain that 
Congress was made aware of the technology when it existed back 
in the middle 1980s.
    And I appreciate your testimony. Thank you.
    Mr. Teufel. If the fourth amendment required a warrant 
before, the fourth amendment requires a warrant today. And if 
there are any violations of intelligence law or policy, they 
have to be reported to the President's Foreign Intelligence 
Advisory Board and potentially to the Attorney General. So I 
just wanted to advise you all of that.
    Chairman Thompson. Thank you.
    I yield 5 minutes to the gentleman from North Carolina, Mr. 
Etheridge.
    Mr. Etheridge. Thank you, Mr. Chairman.
    Let me thank each of you for being here and also for your 
service. And I will say from the outset, so you know where I am 
coming from, I agree with Ms. Harman. I think that we have got 
work to be done in this area.
    I hope you understand why this committee is so sensitive to 
this, of what is going on. When you read it in the paper first, 
it puts us in a defensive mode to start with.
    So that sort of leads me to my question. I served in the 
State legislature one time with what I thought was an 
outstanding legislature, but also a great attorney, and I 
remember one comment he always made. When he was a trial 
attorney, he always wanted to depend on people trusting him. 
But when he got to the General Assembly, he always wanted to 
know about the law. He was concerned about what the 
underpinnings of the law are.
    I think we are here in an area where where a high level of 
trust you can delegate to people you trust. But what happens to 
those people who follow when you don't have firm, hard 
guidelines with underpinnings of the law? Let us talk beyond 
that. Because I think it is critical and we are getting on an 
area where Mr. Allen said earlier, we are talking about an 
expanded customer base. We are in a new area. This hasn't been 
there before.
    So my question is this, I guess. What has sparked the need 
to expand the access to spy satellite imagery? And I guess my 
big question ought to be why was the former system so 
inadequate?
    Mr. Allen. The former system was--I don't know that it was 
totally inadequate. It did excellent work. All that the 
commission--and we had distinguished Americans serve on it and 
studied it and recommended unanimously that there probably were 
some opportunities that were being missed to help protect the 
homeland, to provide greater security on things like ports and 
borders and infrastructures; that we should address those kinds 
of requirements.
    What it recognized was that these are capabilities that 
probably could be used with great care--because it emphasized 
civil rights and civil liberties and privacy in this report 
back to the Director of National Intelligence--was that there 
could be greater opportunities to help keep the country safer 
and more secure. That is the reason that the report--the study 
was conducted. The DNI did not designate the Secretary of 
Homeland Security until June of this year, just 3 months ago, a 
couple of months ago, as the executive agent. We are now 
working hard to get the protocols in place.
    Mr. Etheridge. Let me follow that. Can you provide examples 
of requests you would feel exceed the existing legal limits? 
And secondly, are you aware of any such potential abuses of the 
spy satellite imagery that occurred in the wake of Hurricane 
Katrina; because you talked about having to use it for that, to 
help with that?
    Mr. Allen. I will let my colleagues speak about any 
violations. I was not at Homeland Security when it was used in 
Katrina and Rita, but it was used. It was very valuable. The 
National Spatial Intelligence Agency did good things to bring 
capabilities in a hurry to help save lives and to prevent 
further damage to our country, particularly down in Louisiana 
and Mississippi. It was of great use. The Secretary of Homeland 
Security deeply appreciated that capability. But I know of no 
violations of any law during that. Now, as far as what might be 
violations of the law, I leave it to my colleagues to discuss.
    Mr. Sutherland. One can always imagine hypotheticals that 
would violate the law. You pointed out it would be difficult to 
imagine a fourth-amendment issue in this context, but we will 
certainly be looking at it. And the advantage, as I said 
before, of having the NAO within DHS is you add a layer of 
several additional attorneys, and then those with specialties 
in the area of privacy and civil liberties more generally, who 
are going to be reviewing these. So one can imagine 
hypotheticals. That is our responsibility, is to look at the--
when we have an increased customer base, hopefully you will 
have increased quantity of requests for this outstanding 
technology. Our job is to make sure that increased quantity 
does not sacrifice quality, and we will be able to do that in a 
number of different ways.
    Mr. Etheridge. Mr. Chairman, it seems to me in closing that 
the request that each member has made, I think thus far--and I 
echo that--that we spend more time with you, and getting your 
hands on the documentation so that we can feel comfortable; and 
hopefully in the future others can feel comfortable and the 
American people can feel comfortable that we really are working 
to protect them, as I know you are, but also protecting our 
civil liberties as well as theirs.
    Mr. Allen. Thank you, Congressman. We will do that.
    Chairman Thompson. Thank you very much.
    Yield 5 minutes to the gentleman from Georgia, Mr. Broun.
    Mr. Broun. Thank you, Mr. Chairman. I believe in my heart 
you are honorable folks and I believe, as you state very 
fervently, that there are protections within your agency. That 
doesn't satisfy me. Frankly, I don't believe this horse is dead 
yet, so I will beat it more.
    I agree with Ms. Harman that I think you have a real Posse 
Comitatus problem here and also I know that technology is 
expanding tremendously--minute by minute almost. And I have a 
tremendous distrust of government. And I am not assured by you 
gentlemen that there are sufficient checks and balances put in 
place, because what I hear from you-all is that the agency can 
police itself and there is no outside policing of the agency by 
some separate entity of government.
    As Mr. Green was talking about, I believe very firmly that 
there needs to be some outside review, there needs to be some 
way of going to check the agency itself. We are talking about a 
new agency. We are talking about new technology. We are talking 
about advancing technology. And I believe that every person on 
this committee wants to make sure that this Nation stays safe 
and secure. But I for one am not willing to give up my 
liberties and my constitutionally protected God-given rights to 
your agency or any other. And I hope you see from all of us 
that there is a tremendous concern here.
    I am new on this committee and I am just trying to get 
ahold of things that are going on. And it just deeply concerns 
me as a new Member of Congress about what you are telling me, 
because I don't see any outside review. I don't see any sort of 
effort on your part of looking beyond the agency itself.
    So please reassure me, how--when there are other people 
sitting in your seats, how in the future, as new technologies 
develop, how as we advance a year, 5, 10 years from now, that 
there won't be intrusions into people's privacy and their 
private lives so that we can protect our homeland, that we can 
protect the national interest, but that individuals, law-
abiding citizens aren't under danger. And I don't see that. 
Frankly, I don't see that and I don't hear that from this 
testimony today.
    So if you-all could assure me, I would feel a whole lot 
more comfortable and hopefully the other members of this 
committee will, too.
    Mr. Allen. I think we have gone through the layers of 
review. And this is an office within a Department, and there 
are layers of review there. There is another whole agency 
within the intelligence community called the National 
Geospatial Intelligence Agency which has also significant 
reviews and they only--they only do this where there is a 
proper use memorandum. There are--and there is significant 
review of them.
    There is also the Director of National Intelligence who has 
his own civil rights/civil liberties officer. And the DNI is, 
you know, responsible to ensure that all of his activities are 
under his--he designated this to the Secretary, or done legally 
and properly. There is the President's Foreign Intelligence 
Advisory Board, PFIAB, and under it is the Intelligence 
Oversight Committee which also looks for any violations of 
intelligence law, of intelligence operations and activities. So 
there is huge review. And it is beyond just this office, which 
I will be the operations manager within the Department. But I 
will let my colleagues talk about proper use. And, of course, 
probably the most significant review is here today, the 
Congress of the United States.
    Mr. Sutherland. I think Secretary Allen said it well. I 
think Mr. Toefel and I both have been getting briefings on the 
capabilities of the system, and I think the technology, which 
the Secretary could speak about much more articulately than I 
can. The technology and what the purpose of the imagery is, is 
not concerning just the capabilities of the system. And I don't 
know if you have been able to talk about that a little bit 
more.
    Mr. Allen. The capabilities, I know and I deeply respect 
Congresswoman Harman. There are limits of physics. We are 
talking about space systems. We are not talking about, as 
Congressman Lungren pointed out, airborne or other kinds of 
manned or unmanned aircraft. We are talking about systems 
today, a great deal of the requirements probably as they come 
in from these civil users, non-Defense users under the National 
Applications Office, a lot of them could be satisfied by 
commercial imagery. Commercial imagery is a growing industry, 
and commercial industry has capabilities that are reaching and 
approximating those of classified imagery satellites. And there 
are many waiting to be launched around the world.
    So I agree with you, we are in a different era where 
technology is driving us into a world of deeper concern. And no 
one has more concern I think than I do, given my career with 
intelligence and with the Central Intelligence Agency.
    But from my perspective, there is significant oversight 
throughout these processes. And these systems are not directed 
at individuals, because these systems are not capable of that 
from space. And we are talking about a space-based system here.
    Mr. Toefel. I just want to add, sir, I share your distrust 
of government. That is why I took the job that I hold 
presently. And I know that the Founders had a profound distrust 
of government. And so when they crafted the Constitution of the 
United States, they made it a limiting document, limiting what 
we all can do, we who work in the Federal Government. And so I 
am very focused on that because we all have sworn an oath to 
protect and defend the Constitution. And so I want to tell you 
that, that the Constitution means a great deal to me.
    There are a number of agencies that are involved in 
oversight here, far more than existed previously. A number more 
people who are going to be looking at this thing, including 
career employees, career employees in my office who in our 
close work with INA are becoming more and more involved at an 
earlier and earlier level with intelligence and analysis 
activities. And they have various protections under the law 
that, if necessary, to protect their country and the 
Constitution, they can and doubtless will exercise.
    Chairman Thompson. I can appreciate that. But I have asked 
Ms. Harman and Mr. Carney to expand on this whole issue from 
the Committee's perspective in their chairmanship. There are 
some real concerns that we have going forward with this program 
that I have heard from everyone. And some of the things that 
are being said, I am not comfortable with. The technology can 
do a lot of things, and people saying that it can't causes me 
real concern. But those two individuals kind of take the 
leadership.
    Mr. Carney is chairman of the subcommittee for the full 
committee, and I will yield 5 minutes to him.
    Mr. Carney. Thank you, Mr. Chairman. I do have a number of 
questions, but first I will yield 30 seconds to my colleague 
from Texas, Mr. Green.
    Mr. Green. Thank you, Mr. Chairman. And thank you for 
yielding.
    Two things. One, the Constitution, the Fourth Amendment 
contemplates privacy in the home. But it really concerns 
privacy, and the home is not the only place where the Fourth 
Amendment contemplates privacy.
    The second point: If you have an issue that you deem to be 
important enough to take to a court to receive a proper 
warrant, what court would you take it to?
    Mr. Sutherland. I assume, sir, that it would be taken by 
the prosecuting attorney in whatever jurisdiction which they 
are seeking to use that information.
    Mr. Green. I ask this question, Mr. Chairman, because it 
may be necessary for us to deal with jurisdictional questions 
in terms of the judiciary as it relates to the issue of what 
court they would eventually go to, assuming they had a 
legitimate question they wanted to bring up.
    Finally, I would make this comment. I respect you, sir, and 
have great appreciation for what you are saying. But J. Edgar 
Hoover, who was the head of the FBI, a great patriot, spied on 
Dr. King. The FBI spied on Mrs. King after his death. It was 
all unlawful. So, we cannot assume that the Executive is going 
to be judicious when it comes to the Fourth Amendment.
    Mr. Toefel. You are right, sir. So let me point out that, 
under the 9/11 Commission Report bill----
    Chairman Thompson. The gentleman yielded back his time. It 
did not require an answer.
    Mr. Carney. If Professor Toefel would like to answer, that 
would be fine.
    Mr. Toefel. I just wanted to point out that, under the 9/11 
Commission Report bill that was enacted, the Privacy and Civil 
Liberties Oversight Board has far greater independence. And 
that is the first entity with independence that I would point 
you to, greater independence than my office or Dan's office.
    And then the second office that I would point you to is the 
various Offices of Inspector General at DHS, at whatever 
requesting agency, and over at DOD. And the inspector generals 
have great independence and can look into allegations of 
impropriety, unconstitutional, unlawful activity whether at DHS 
and the NAO or over at NGA.
    So I wanted to call that to the committee's attention.
    Mr. Carney. Thank you for that.
    With my background, I have a little more faith in our 
systems and their capabilities than Mr. Allen is letting on, I 
think, here. Can somebody describe the steps and the process, 
how this actually works? You get a request from law enforcement 
agency X. Then what happens?
    Mr. Allen. You could get a request from the Federal Bureau 
of Investigation. Today it goes directly to the National 
Geospacial Intelligence Agency. Under our proposed system, it 
would go to the National Applications Office, where it would be 
looked at to see if it is lawful and meets the needs for what 
for the request, that it is prioritized, and then sent over to 
the GNGA where it is looked at again for its proper use, under 
the Proper Use Memorandum which the Bureau would have 
submitted. And then, if it is proper and lawful, it will then 
be put into the system to get access to conduct, collect that 
imagery. The NRO would do that. The NRO simply operates the 
satellites. And then the material would come back and then be 
geospacially looked at and read out by analysts. The U.S. 
Geological Survey has its own analysts, and they do a great 
job. Some of the material is read out immediately by the 
National Geospacial Intelligence Agency.
    So it works very well today, but I think it could work 
better under this National Applications Office, certainly a 
broader set of customers.
    Mr. Carney. How long does this take, this process?
    Mr. Allen. We are getting into classified areas when we 
talk about capabilities of our satellites.
    Mr. Carney. No. How long does the process take?
    Mr. Allen. The process can be very quick. It can be a 
matter of hours, or it can take a significant longer period of 
time if it is a routine, a nonemergency type of request. I 
mean, I am restricted on speaking specifics about our 
classified satellites and their capabilities.
    Mr. Carney. That, I understand. But I am just talking about 
just the process here. We are talking about novel issues 
sometimes. I think that was Mr. Sutherland's term.
    Mr. Allen. If it is a novel issue, I am sure it would be 
given a lot of scrutiny and would take significant layers of 
review before. And if it was decided not proper, the requesting 
agency or department would be told it was improper.
    Mr. Carney. Are we talking days, weeks, hours?
    Mr. Allen. It depends on the urgency. Because--I think you 
all do not have a clear idea of what the NAO is. It is a 
clearinghouse that looks at needs and/or requirements from non-
Defense users, potentially, and then to help look at those; if 
they are competing priorities, to help make recommendations to 
the NGA on which takes precedence. So we view this generally as 
sort of a nonurgent, nonemergency process. But if a hurricane 
hits Louisiana or Mississippi, we obviously are going to give 
it high attention. And NGA will turn it around in a very quick 
period, certainly overnight.
    Mr. Carney. But for law enforcement applications, how does 
that work?
    Mr. Allen. We are only now forming a legal working group 
under DHS, DNI, and the Department of Justice to look at how 
law enforcement uses might be employed. But it would be on a 
case-by-base basis. So this is downstream. This is not my 
highest priority. My highest priority is to make sure that 
homeland security, along with civil applications, gets full 
support.
    Mr. Carney. Well, there are criminal applications in 
Homeland Security. For example, legal immigration, et cetera. 
The concept of operations and the SOPs, two different things 
obviously. The Con Ops have been done for a few weeks now. Is 
that correct?
    Mr. Allen. We provided it I believe to your staff on 17 
August, is what I was told by my own staff.
    Mr. Carney. And the SOPs should be done, when?
    Mr. Allen. We are working on the SOPs. Some of the 
guidelines are done at this stage. Others are yet to be 
completed. But we are moving ahead.
    Mr. Carney. Will the SOPs be completed by the October time 
frame?
    Mr. Allen. I believe, as we understand how to use--for 
example, if we ever use law enforcement applications directly, 
that is downstream. Most of the standard operating procedures 
will be available and the guidelines by 1 October. I believe we 
can meet that deadline.
    Mr. Carney. Certainly, Mr. Secretary, you understand that 
we are anticipating downstream; we are trying to do that, too, 
to make us all think about how this is going to go forward. We 
all have jobs to do, we all have our roles in protecting this 
Nation, and we've got to get it right. So I just want to get as 
much clarified up front as we could.
    Thank you, Mr. Chairman.
    Chairman Thompson. Thank you very much.
    We yield 5 minutes to the gentlelady from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. Thank you, Mr. Chairman. And let me thank 
you for the hearing; as well as the subcommittee chairwoman, 
Ms. Harman, for her insight.
    Allow me to first of all lay the framework and make it very 
clear that I don't intend to suggest untoward activities or 
thoughts behind this program by any of the individuals who work 
for the American people. I believe your intentions are well. 
However, I have come to understand since being on the Select 
Committee on Homeland Security, this Committee was set to 
ensure or to assure the American people that the Congress of 
the United States must have as its highest priority the 
securing of America. So I would take great issue and offense 
and will continue to have this offense to have discovered this 
process and program in the Wall Street Journal.
    And then it seems that the administration embraces August 
as a month where they make big announcements. Maybe it is so 
that you can have the complete limelight, and Congress is not 
in session. But that, I think, does damage to the 
constitutional premise of the three branches of government and 
how we are to work together. So we find that you issue a fact 
sheet on August 15, 2007, which leaves a great deal of question 
as to the good purposes and good intentions of making sure that 
Congress and this Committee is a real partner.
    We have a very important responsibility that I will never 
undermine or deny, to protect the American people, but also 
their civil liberties and civil rights. Let me remind you of an 
incident by the former majority leader of this Congress, Tom 
DeLay who decided to use the FAA and to use a government plane, 
and I will not suggest it was Department of Defense because our 
facts get somewhat strayed, to go after State legislators in 
the Texas legislature regarding a question of redistricting. I 
am sure the utilization of the plane on behalf of the United 
States of America and the American people was originally of 
good intentions but, unfortunately, ultimately a member of this 
body abused the process. So abuse is not unknown to government. 
And I would simply suggest that our concern is more than 
legitimate because of the way, first of all, that we were 
apprised of it. It almost seems that we wanted to make sure 
that we were not a partner.
    Let me pose this question to Mr. Allen and again thank him 
for his service. I know that it may have been raised before, 
but we realize that these satellites are coming in from the 
Department of Defense, and we know how to find a firewall that 
we want to keep, based upon the Posse Comitatus Act, and we 
also know that you have had for 30 years access to the National 
Geographical Survey Civil application system, which is also a 
satellite. What precise mechanisms are going to ensure us that 
we are not violating the Posse Comitatus Act with the use of 
this spy satellite? And again, if you would recite for me the 
firewall, the, if you will, complete concreteness that there 
will not be an abridgement of the civil liberties of 
individuals who could be caught up in the fishnet of the local 
law enforcement requesting utilization of this equipment, Mr. 
Allen.
    And if all would answer this question, I appreciate it.
    Mr. Allen. I think all should comment. We certainly want to 
keep you informed and be transparent. I have told the chairman 
that, evidently in this case, we did not fully brief him or his 
subcommittees at a level that was required, and that is 
regrettable. And I have said that, and so did the Secretary of 
Homeland Security has said that.
    Ms. Jackson Lee. And it opens us all up to exposure.
    Mr. Allen. So let me again say that that was not done well. 
But I think we have set forth here an organized structured 
process to bring into order processes that are occurring and 
have occurred over decades for other purposes than just civil 
applications. Scientific research. We want to continue that. 
And we believe that, in response to the Blue Ribbon Commission 
that there are other things that we can do on a very protected 
basis for civil rights, civil liberties, and privacy to help 
assure better the security of this country. We do not call them 
spy satellites, we call them remote sensing capabilities or 
classified satellites. These are imagery satellites that we are 
talking about. We are not talking about anything beyond that.
    I will let me colleagues again speak to any issues relating 
to constitutional questions or Posse Comitatus or questions of 
firewalls.
    Mr. Sutherland. Congresswoman, we have described the 
different layers of review that are incorporated here and the 
concepts that you are laying out and other members are laying 
out about the importance of protecting civil liberties. That is 
a principle that has been embedded throughout. I laid out in my 
testimony why I am optimistic that we will have a good working 
relationship to be able to bring the kind of analysis that you 
are talking about into the work of the NAO.
    I think that much of the concern here in the Committee 
could be alleviated by more extensive briefings from NGA, which 
again has had nearly 30 years of experience in working through 
these issues and how they deal with Posse Comitatus, how they 
deal with routine requests, and just to have a depth of 
understanding of how they deal with their process onto which 
then we are adding additional layers of review.
    Ms. Jackson Lee. Mr. Toefel, you are solely responsible for 
this. Give me a straight answer on the Posse Comitatus, please.
    Mr. Toefel. Ma'am, I will do the best I can. Understand 
that I am the privacy officer; I am not in a legal position, 
and I am not here testifying in my other government capacity as 
a judge advocate in the Army National Guard. So I will do the 
best that I can do to describe the Posse Comitatus Act, but it 
is really something for our lawyers to do.
    As I understand the Posse Comitatus Act, it prohibits 
direct support to law enforcement activities such as arrests. 
When in title 10 status----
    Ms. Jackson Lee. Using Department of Defense.
    Mr. Toefel. Yes. When in title 10--and if I recall 
correctly, the language of the Posse Comitatus Act addresses 
the Army and the Navy. Again, I am here as the privacy officer, 
not as a judge advocate or a representative of the General 
Counsel's Office at the Department. So if I am getting this 
incorrect, understand it is a policy guy speaking with you, 
ma'am, trying to do his best to answer your question. So----
    Ms. Jackson Lee. I am just trying to get you to help Mr. 
Sutherland.
    Mr. Toefel. I am doing the best I can, ma'am.
    So NGA can provide indirect support, technical sorts of 
things, but it must be done under the direction of law 
enforcement. Again, as I understand the Posse Comitatus Act.
    There is no Posse Comitatus Act implication if the national 
technical means are used under title 50 status. And, as I 
understand it, they can then provide support. But, again, this 
is as a nonpracticing lawyer trying to answer the question 
about whether the Posse Comitatus Act applies.
    Ms. Jackson Lee. I know my time is up. I just want to say 
that I think they have tried their best to answer the question, 
but it has not been fully answered, and we need to pursue it 
further.
    Chairman Thompson. I was going to make that point. Ms. 
Harman had already raised that issue, and I am sure these 
gentlemen will have that opportunity to respond in writing to 
some of the inquiries we will have.
    Thank you, gentlemen, for your presence and presentation 
and response to the questions. As you know, we will probably 
have significant issues to share with you that have been raised 
with the committee. We look forward to not only your 
acknowledgement of those issues but your prompt response back 
to the committee, given this October 1 time frame that we have 
been told that this program is scheduled to begin. Thank you 
very much.
    Mr. Allen. Mr. Chairman, thank you. We look forward to 
responding and getting back to you promptly. Thank you.
    Chairman Thompson. Thank you very much.
    We would like to ask our second panel to come forward, 
please.
    Chairman Thompson. We would like to welcome our second 
panel. Our witnesses, Mr. Barry Steinhardt is director of the 
ACLU program on technology and liberty. And Mr. Steinhardt 
served as associate director for the American Civil Liberties 
Union between 1992 and 2002.
    The second witness, Ms. Lisa Graves, is the deputy director 
for the Center for National Security Studies, a nongovernmental 
organization that researches and advocates for civil liberties 
on national security issues.
    We would like to welcome you to the hearing. And, without 
objection, the witnesses' full statements will be inserted in 
the record.
    I now recognize each witness to summarize his or her 
statement for 5 minutes, beginning with Mr. Steinhardt.

   STATEMENT OF BARRY STEINHARDT, DIRECTOR, ACLU PROGRAM ON 
     TECHNOLOGY AND LIBERTY, AMERICAN CIVIL LIBERTIES UNION

    Mr. Steinhardt. Thank you, Mr. Chairman.
    The government's use of spy satellites to monitor its own 
people, and let me emphasize that. This is to monitor the 
American people. This is not weather phenomena. This is not our 
National infrastructure, bridges or the like. This is people 
who are being monitored here, represents another large and 
disturbing step towards what amounts to a surveillance society. 
Our response, especially the Congressional response to this new 
technology, will serve as an important test case for how wisely 
we handle the introduction of powerful new technologies.
    Congress needs to act before this new technology, this new 
tool is turned inward on the American people. We need to 
establish a regime of checks and balances and law that protects 
us against their misuse.
    The chairman and this Committee have taken an important 
first step in calling the Department of Homeland Security to 
account and holding this hearing. You have our thanks, Mr. 
Chairman. But it has been interesting. I have heard a lot of 
discussion this morning about the respective roles of the three 
branches of government here. Most of the discussion about the 
two other of branches of government beyond the executive 
branch, that is the legislative branch and the judicial branch, 
have come from the members of this Committee.
    One of the things that I find disturbing about this 
discussion this morning, not the Committee's participation in 
it but the Department's, is the degree to which you have been 
told by the Department of Homeland Security, ``trust us; we can 
handle all of this powerful technology, and we will handle it 
in a manner that is consistent with our principles and 
consistent''--they haven't even said consistent with the laws, 
but I suppose that is implied.
    I guess I am from the Ronald Reagan school here, trust but 
verify. You need to verify that in fact this technology will 
not be misused. And one way in which you can verify that is to 
establish a clear legal framework for how this technology can 
in fact be used. As Mrs. Harman said earlier, the capabilities 
here are extraordinary. They go far beyond what the human eye 
can process. These are very powerful technologies, everything 
from thermal imaging that you discussed a little bit this 
morning, to infrared, to ultrawide band. We can tick them all 
off. But the point is, these are extraordinarily powerful 
technologies, and they go well beyond what you and I could see 
if we happened, for example, to be in a helicopter. We need to 
have laws that make it clear how these technologies can be 
trained inward on the American people.
    Now, there is a very good starting base for all this, and 
it has been referenced here this morning, and that is Posse 
Comitatus. In my written testimony, we discuss this in greater 
length, and with the Committee's permission, we will make 
available to you a memorandum from our legal counsel on the 
applicability of Posse Comitatus here. But it is important to 
remember what the basic principle of the Posse Comitatus and 
the ensuing Federal statutes was. The notion that military is 
not to be trained on the American public; it is for our 
National defense. It is not to be used for law enforcement 
purposes. These are the Department of Defense satellites. These 
offices are within the Department of Defense. This is the 
military. And we need to be very careful that Posse Comitatus 
and that principle that we not use the military we have trained 
on the American public; these are not folks who are trained or 
capable in protecting the rights of Americans. That is why we 
have set them apart and said, you protect us from foreign 
enemies, but we do not use you for domestic law enforcement. So 
I think Posse Comitatus raises important questions.
    We have four recommendations for the Committee which I will 
just highlight now. The first is that Congress should demand 
and the Department of Homeland Security should impose a 
moratorium on the domestic use of these satellites and 
enactment of this program. The moratorium should not be lifted 
until the Congress receives answers to the key questions that 
you have already begun to ask and the many other questions that 
will arise as you learn more details. But that moratorium is 
extraordinarily important. There is no hurry here. You have 
heard, if it is necessary to use this, for example, to track a 
hurricane or even to look at another natural disaster, there is 
already sufficient authority for that.
    Secondly, Congress should not authorize the enactment of 
this program before enacting statutory checks and balances to 
ensure not only the proper oversight of this program but that 
the potentially enormously powerful surveillance tools that are 
at play here be used properly. This measure should include 
rules for when domestic satellite use is permissible and be 
combined with judicial oversight.
    Lastly, the Congress should strengthen and make truly 
independent the chief privacy officer and civil rights officers 
of the Department of Homeland Security. As Representative 
Thompson pointed out in his letter to Secretary Chertoff, those 
bodies, those offices appear to have been marginalized through 
this process. I think this morning's testimony made that clear 
as well. It is possible to give these bodies true independent 
authority where they report equally to the Congress as they do 
to the Secretary of their agencies, that it is possible to get 
beyond a discussion which is purely internal to the agency to 
have those officers report to you, report to the American 
public, and make sure that our civil liberties and privacy is 
in fact being protected.
    With that I will take your questions. Thank you for your 
indulgence.
    [The statement of Mr. Steinhardt follows:]

                 Prepared Statement of Barry Steinhardt

Summary of Recommendations
        1. Congress should demand, and DHS should impose, a moratorium 
        on the enactment of this program. The moratorium should not be 
        lifted unless Congress receives answers to the key questions 
        outlined above and raised by the Chair and Congressman Markey.

        2. The moratorium should not be lifted until Congress 
        authorizes it.

        3. Congress should not authorize the enactment of this program 
        before enacting statutory checks and balances to ensure the 
        proper oversight of this potentially enormously powerful 
        surveillance tool. Those measures should include clear rules 
        for when domestic satellite use is permissible combined with 
        judicial oversight of such use.

        4. Congress should also strengthen and make truly independent 
        the Chief Privacy Officer of the Department of Homeland 
        Security, which, as Rep. Thompson pointed out in his letter to 
        Secretary Chertoff, appears to have been marginalized by the 
        department in the course of planning this initiative. Congress 
        should also institute similar independent privacy officers for 
        other arms of our national security establishment.
----------------------------------------------------------------------
--------
    My name is Barry Steinhardt and I am the director of the Technology 
and Liberty Program at the American Civil Liberties Union (ACLU). The 
ACLU is a nationwide, non-partisan organization with nearly 500,000 
members dedicated to protecting the individual liberties and freedoms 
guaranteed in the Constitution and laws of the United States. I 
appreciate the opportunity to testify about the privacy and civil 
liberties implications of domestic spy satellites on behalf of the ACLU 
before the House Committee on Homeland Security.

A surveillance society?
    Government satellite technology is representative of a larger trend 
that has been underway in the United States: the seemingly inexorable 
drift toward a surveillance society.
    The explosion of computers, cameras, sensors, wireless 
communication, GPS, biometrics, and other technologies in just the last 
10 years is feeding what can be described as a surveillance monster 
that is growing silently in our midst. Scarcely a month goes by in 
which we don't read about some new high-tech method for invading 
privacy, from face recognition to implantable microchips, data-mining 
to DNA chips, electronic identity systems, access passes that record 
our comings and goings, and even plans for RFID radio computer chips in 
our clothing and other consumer goods. The fact is, there are no longer 
any technical barriers to the creation of the surveillance society.
    While the technological bars are falling away, we should be 
strengthening the laws and institutions that protect against abuse.
    Unfortunately, even as this surveillance monster grows in power, we 
are weakening the legal chains that keep it from trampling our privacy. 
We should be responding to intrusive new technologies by building 
stronger restraints to protect our privacy; instead, we are doing the 
opposite--loosening regulations on government surveillance, watching 
passively as private surveillance grows unchecked, and contemplating 
the introduction of tremendously powerful new surveillance 
infrastructures that will tie all this information together. (The ACLU 
has written a report on this subject, entitled Bigger Monster, Weaker 
Chains: The Growth of an American Surveillance Society, which is 
available on our Web site at www.aclu.org/privacy.)
    Given this larger context in which the plans for domestic 
deployment of our spy satellites are being made, several conclusions 
are clear:
         This step is part of a trend of turning our nation's 
        surveillance capabilities inward upon our own population.
         If spy satellites are to be deployed domestically, it 
        is vital that the most rigorous checks and balances and 
        oversight mechanisms be put in place.
         There is much that we do not know about our nation's 
        satellite surveillance capabilities.
         A moratorium should be placed on this program until 
        Congress receives answers to the key questions about the 
        program, enacts far-seeing statutory protections against its 
        misuse, and explicitly authorizes the program.
    The government's use of military spy satellites to monitor its own 
people represents another large step toward a surveillance society. Our 
response--and especially the Congressional response--to this new 
technology will serve as a test case for how wisely we handle the 
introduction of a powerful new surveillance technology by the 
government.
    Chairman Thompson and the Committee have taken an important first 
step in calling this hearing. But other steps must be taken before this 
program is allowed to go into effect.
    There is much that we do not know about this classified system of 
spy satellites that was designed for military and foreign intelligence 
purposes. One fact seems plain:
    The satellites have capabilities that far exceed those that are in 
commercial use.
         They have far better resolution. They can see much 
        more clearly and in greater detail.
         While perhaps not as nimble as they have been 
        portrayed in popular entertainment like 24 or Enemy of the 
        State, they apparently do have advanced targeting capabilities.
         They can and do see far more than the human eye. There 
        is much we do not know about their ability to pierce opaque 
        objects, but there is every reason to believe they have some 
        (and perhaps substantial) capacity to do exactly that with the 
        power to convey information about how Americans live and work.
         The military and the intelligence community are at the 
        cutting edge of technological change. The satellites are only 
        going to grow more powerful and capable and change will occur 
        quickly.
    The Congress needs to act before our military satellites are 
deployed domestically. You must act before they are turned on our own 
people.
    It is vital that the most rigorous checks and balances and 
oversight mechanisms be put in place. The domestic use of spy 
satellites represents a potential monster in the making, and we need to 
put some chains on this beast before it grows into something we cannot 
control.

Our laws aren't strong enough
    The Department of Defense (``DoD'') and Department of Homeland 
Security (``DHS'') have strongly implied in media reports that there is 
no legal guidance available to them regarding the use of spy 
satellites. Nothing could be further from the truth. Congress has 
thought long and carefully about this issue. Beginning in 1981 and 
steadily updated over the subsequent two and a half decades, Congress 
has passed detailed statutory guidance as to how the military is to act 
when involved with civilian law enforcement. Currently embodied by 
Title 10 Sections 371 through 382 of the U.S. Code and military 
regulations such as DoD Directive 5525.5, federal law controls 
everything from the use of military equipment and facilities to 
emergency situations like those involving weapons of mass destruction.
    Military involvement in civilian law enforcement is something that 
Americans have always regarded with deep unease and the Posse Comitatus 
Act reflects those concerns. When Congress updated the Posse Comitatus 
Act it did so with careful deliberation. Authorizations for military 
involvement were limited, originally only allowing the military to 
operate directly in one area: suppression of the drug trade at the 
border. Congress generally limited the military to indirect 
assistance--loaning equipment and training civilian police. Direct 
action by the military could only be undertaken outside the United 
States.
    These laws have been updated over the years, but the basic 
prohibitions (currently embodied in 10 USC 374) have remained intact: 
direct assistance by the military is permitted only for a limited 
number of crimes, and monitoring of individuals is largely limited to 
the area outside the continental United States. DoD and DHS simply 
cannot be allow to step in and pretend that none of these rules apply 
and that this substantial body of law does not exist.
    While there is substantial law to be applied in this situation, it 
may not be sufficient to contend with the new reality of military spy 
technology stationed miles above the earth, rather than soldiers with 
their boots on the ground.
    Unfortunately, given uncertainties about the precise technical 
capabilities of the spy satellites and the applicability of the Posse 
Comitatus Act in this context, Congress cannot regard the act as a 
reliable legal bulwark against the abuse of satellite technology. In 
addition, it is certainly conceivable that a domestic law enforcement 
agency could in the future launch its own spy satellite, or that one of 
the spy satellite agencies could be transferred out of the Pentagon and 
into a civilian branch of government. In either of those cases, Posse 
Comitatus would lose all relevance--and yet it would still be crucial 
that the use of spy satellites be subject to checks and balances.
    In any case, permitting domestic spying by the military using 
powerful high-technology spy satellites certainly runs contrary to the 
spirit of the act and the concerns that prompted its passage: the fact 
that the might of the military is a dangerous thing in a democracy--a 
tiger in our midst--and must be carefully bounded and restricted in 
light of the experience of so many societies throughout history where 
the military has become a political force with power that comes not 
from the ballot box but from the barrel of a gun--or the lens of a 
camera.
    Aside from the Posse Comitatus Act, another apparent restriction on 
the use of satellites domestically is the U.S. Supreme Court decision 
Kyllo v. United States, in which Justice Antonin Scalia, writing for 
the majority, found that police could not peer inside a private home 
using a thermal imaging device without a warrant.\1\ That ruling should 
prevent some hypothetical uses of satellites, such as the scanning of 
entire neighborhoods for the presence of heat sources.
---------------------------------------------------------------------------
    \1\ 533 U.S. 27 (2001)

The need for oversight
    Of course, without proper checks and balances there is no guarantee 
that appropriate limits would be observed. Whenever we contemplate the 
introduction of tremendously powerful new technologies into our 
domestic arena, our current generation and the current Congress needs 
to think like Founding Fathers, and Mothers. It was not clear in 1776 
what the threats to freedom and democracy would be as the new nation 
developed, but the Founders were wise enough to put in place a robust 
system of checks and balances that has withstood the full range of 
human folly and perfidy for over 200 years. When it comes to spy 
satellite technology, we may be living in the equivalent of the year 
1789 right now. Put another way, we may be looking at a potential 
monster is still in its infancy. And if this technology is going to be 
permitted to be turned inward upon the American people, we need 
absolute certainty we have the right kind of restraints in place to 
ensure that, as it grows and evolves in ways we cannot predict, it will 
not trample on Americans' privacy or other rights.
    It is not simply a matter of whether we believe rogue agencies will 
flout the law (though in the absence of oversight that would certainly 
be a possibility over time). Often, it is not clear what the law says, 
and the issue is whether that will be decided in secret or hashed out 
in public. For example, take the Supreme Court's Kyllo ruling against 
thermal imaging inside a home. When satellite use includes non-visible 
spectrum technologies, questions must inevitably arise about the 
interpretation and limits of that ruling and how it applies to specific 
uses. For example, scientists use satellite images outside of the 
visible spectrum to study the earth and environment; that would not 
seem to be a violation. But it is not clear where the boundary between 
that application and the one struck down in Kyllo would lie.
    The question of oversight is partly the question of who gets to 
decide such questions and make such interpretations. If satellite 
surveillance is permitted to take place completely within the shadows, 
then those interpretive decisions will be made unilaterally by the 
military itself, and will almost certainly be made in a manner that is 
as generous as possible to the military.
    We believe that the first step in imposing the needed oversight 
over this program is for a moratorium to be placed on its commencement. 
The second step is for Congress to ask all the key questions that need 
to be asked in constructing proper systems of oversight of this 
program--and for answers to be provided by the National Reconnaissance 
Agency, the National Geospatial-Intelligence Agency (formerly the 
National Imagery and Mapping Agency), the Department of Homeland 
Security, or whatever other agency might be appropriate.
    Only with the answers to those key questions can Congress begin the 
task of writing legislation to impose checks and balances on this 
program, and only with the passage of such legislation should Congress 
authorize the start of this program.

Key questions for Congress to ask
    Two members--Congressmen Thompson, the chair of this committee, and 
Rep. Edward J. Markey, a member of this committee--deserve our thanks 
for raising the right questions and beginning the process of vigorous 
oversight.
    Chairman Thompson has done so not only by calling this hearing, but 
also through his August 22 letter to Homeland Security Secretary 
Michael Chertoff (attached for reference). In that letter, Rep. 
Thompson requests regular briefings on the status of the project, and 
expresses well-deserved dismay at DHS's decision to launch a program 
such as this without making use of DHS's own Chief Privacy Officer and 
Officer for Civil Rights and Civil Liberties, and the president's 
Privacy and Civil Liberties Oversight Board.
    We share Mr. Thompson's concerns; the failure of the government to 
avail itself of even those weak oversight institutions that now exist 
does not bode well for how oversight will be conducted over this 
program by the government in the absence of more serious oversight 
mechanisms enacted into law. It also serves as a reminder of how 
important it is that true checks and balances include truly independent 
countervailing institutions that cannot simply be written out of the 
process at will.
    A good start to Congressional oversight of this program has also 
been provided by Rep. Markey in his capacity as Chair of the 
Subcommittee on Telecommunications and the Internet of the House Energy 
and Commerce Committee. In his August 16 letter to Mr. Chertoff 
(attached), sought the answers to a number of vital questions about 
this program, including:
         Privacy and Civil Liberties. What DHS has done to 
        ensure that the program would not violate privacy? In 
        particular, what current policies and procedures govern the 
        domestic use of satellites? Have inadequacies been found in 
        those processes? Have or will new policies be developed before 
        the program is launched? Will any agencies retain any of the 
        output from spy satellites after it has been evaluated? What 
        privacy and security safeguards will be used for the storage of 
        the information? How will the Department handle complaints from 
        individuals subject to surveillance under this program?
         Legality. Has DHS conducted an assessment of the 
        legality of the program?
         Science. Might the surveillance efforts erode the 
        current scientific mission of the satellite program?
         Commercial alternatives. Why has DHS not turned to 
        commercial satellite providers to meet the objectives it is 
        seeking with this program?
    All of those questions, like those posed by Rep. Thompson, must be 
answered before this program can be allowed to go into effect. In 
addition, I would like to add several more questions that we believe 
Congress must obtain answers to.

What are the capabilities of today's spy satellites?
    The striking thing about our spy satellites is just how much we do 
not know about them. And it's difficult to draw conclusions about the 
domestic use of spy satellites when we don't know what they're capable 
of. In order to craft the right restraints, we need to know just what 
this monster looks like--and how it is likely to grow.
    For example, we do not even know the answer to perhaps the most 
basic question: what resolution they are capable of. We know Google can 
go to half a meter, and experts outside the intelligence community say 
that government satellites exceed that. But, we do not know by how 
much.
    Government satellite images presumably differ in several ways from 
publicly available online images provided by Google, Microsoft and 
other Web providers. Online images are merely snapshots taken at most 
once every few months. Spy satellites may have or gain the capability 
of producing live, moving images like that from a video camera. 
Satellites may also be capable of sweeping through much greater 
geographical areas, and/or of quickly moving their lenses to examine a 
particular spot within a much greater area at a moment's notice. And 
they also have capabilities such as radar and infrared imaging. And of 
course, they can observe ground activities silently and invisibly.
    We do not know what they can do in terms of penetrating roofs or 
other structures, live monitoring, the scanning of large geographical 
areas, the use of artificial intelligence to guide imaging, or other 
capabilities that we might not even think of. Without knowing the 
answers to such questions, we cannot even begin to evaluate their 
potential threat to our privacy.
    There is a lot of discussion and speculation about this topic on 
the Internet and elsewhere, and many experts have ideas of what the 
limits of this technology are. Undoubtedly, many will emphasize those 
limits to you in trying to downplay the privacy threat of this 
technology.
    But Americans have the right not just to be free of secret 
government spying of their innocent activities, but also to have 
confidence that they are not susceptible to the constant possibility of 
being invisibly observed. So in our view the government must completely 
declassify and disclose publicly the full extent of the technological 
capabilities of any satellites that will be aimed at the American 
people, and you, Congress, must think like Founding Fathers and 
institute checks and balances that would be strong enough to protect 
Americans' privacy even in the face of every gee-whiz satellite 
capability that Hollywood has ever imagined.

What might spy satellites be capable of in the future?
    The Congress also needs to know how satellite technology is likely 
to develop in coming decades given how rapidly technology is advancing. 
A reasonable forecast of future progress might be made based on factors 
such as:
         The continuing exponential growth in computing power 
        and data transfer rates
         The similar rapid growth in the power of digital 
        imaging that we have all seen in the prices and capabilities of 
        consumer digital cameras
         The continuing development of imaging technologies 
        outside the visual spectrum, such as infrared, ultra-wideband, 
        various kinds of radar, etc.
         The possible solution to research problems that are 
        currently being worked upon.
         The amount of resources that are likely to be devoted 
        to the development of our spy satellite technology in coming 
        years
    Of course a wise policymaker will institute checks and balances 
that account not only for reasonably foreseeable developments, but also 
the possibility for the sudden emergence of new inventions that are 
today completely unanticipated.

Just what uses does our security establishment envision putting these 
new satellites to?
    Are there really serious advantages that spy satellites can provide 
to police and Homeland Security agencies that cannot be provided by 
commercial satellite images of the type available on the Internet or 
elsewhere? If so, what are those uses? Are the advantages provided by 
this program substantial enough to counterbalance its threat to our 
privacy? Or is this just another example of an arm of our security 
establishment seeking to find new missions and new reasons for being in 
order to expand its budgets and bureaucratic reach? Or is law 
enforcement being seduced by the siren call (to which many of us are 
susceptible) of really cool toys?
    If this new program does not actually show substantial promise in 
making people safer, the matter should end there. There is no need to 
engage in detailed balancing tests or evaluations of a program's effect 
on privacy if it is not going to increase security.

Recommendations
    We recommend 4 basic steps in response to this situation.
        1. Congress should demand, and DHS should impose, a moratorium 
        on the enactment of this program. The moratorium should not be 
        lifted unless Congress receives answers to the key questions 
        outlined above and raised by the Chair and Congressman Markey.
        2. The moratorium should not be lifted until Congress 
        authorizes it.
        3. Congress should not authorize the enactment of this program 
        before enacting statutory checks and balances to ensure the 
        proper oversight of this potentially enormously powerful 
        surveillance tool. Those measures should include clear rules 
        for when domestic satellite use is permissible combined with 
        judicial oversight of such use.
        4. Congress should also strengthen and make truly independent 
        the Chief Privacy Officer of the Department of Homeland 
        Security, which, as Rep. Thompson pointed out in his letter to 
        Secretary Chertoff, appears to have been marginalized by the 
        department in the course of planning this initiative. Congress 
        should also institute similar independent privacy officers for 
        other arms of our national security establishment.
    Satellites are but one of many powerful new technologies that are 
entering our lives at this exciting point in our history. Many of those 
new technologies promise wonderful new innovations and conveniences-but 
many, in the absence of due concern and care over their effect on 
privacy, and in the absence of strong privacy regulations, threaten to 
become an out-of-control monster that moves us closer than ever to a 
genuine surveillance society. Congress needs to craft sufficiently 
strong restraints on this program to ensure that it does not go out of 
control--to protect Americans against the potential for unacceptable 
uses of satellite surveillance. And it should treat military spy 
satellites as a test case for how other technologies should be handled, 
ideally backed up by an overarching privacy law that will create more 
clarity and stability of expectations for Americans living in an era of 
constant change.

    Chairman Thompson. Thank you very much.
    I would now yield 5 minutes to Ms. Graves for summation of 
her testimony.

STATEMENT OF LISA GRAVES, DEPUTY DIRECTOR, CENTER FOR NATIONAL 
                        SECURITY STUDIES

    Ms. Graves. Thank you, Mr. Chairman. We appreciate very 
much the invitation to be here. On behalf of the Center for 
National Security Studies and my partner, Kate Martin, we 
appreciate very much the opportunity to testify today about 
these very important matters. I am going to dispense with the 
statement that I prepared because I found the testimony this 
morning so astonishing that I would like to respond to some of 
the points made. And, in addition, I would like to associate 
myself with the remarks of my colleague over here. I thought 
those were very important observations.
    The Center for National Security Studies stands by our 
statement about our grave concerns about the proposed activity, 
whether it is down the stream or the present proposed activity. 
Calling the potential unilateral deployment by the executive 
branch of these extraordinary surveillance powers on the 
homeland domestically is a dramatic change in the law, and we 
do think that it is like Big Brother in the Sky.
    Now, I understand that there is classified information 
about the range of this technology, about the scope of it. Let 
me just be clear about our understanding from the public 
records. There are assertions that the current resolution of 
even the imaging satellites is between 0.5 meters and a meter. 
In essence, for things that are 3 feet across, 3 feet wide. But 
that is in essence the commercial technology right now. The 
current estimates in the public domain about the true 
possibilities of this surveillance are that it is within the 
inches range of its resolution. That is in the public domain of 
that speculation. And that actually informs in some way this 
new desire to implement this new technology, because it is now 
about people, about being able to monitor people.
    So when the Department of Homeland Security says, don't 
worry, we can't tell if you need a hair cut, I would say, yet. 
They are still looking at people. The purpose of this, the 
examples highlighted in this so-called Blue Ribbon Commission 
about how they would like to use this, are directed at people. 
So I hope you won't be misled unintentionally about the scope 
of this authority. But let me just add a few additional things.
    I was astonished by the assertions today that no law needs 
to be changed to accomplish this. Let me just refer you to the 
record that was before the House Judiciary Committee in 1981 
when Congress, not the executive branch, when Congress 
considered whether to allow the military to be involved in the 
enforcement of drug laws extraterritorially and at the border. 
This was the record.
    Before Congress at that hearing there were opinion after 
opinion of legal opinions of the Office of Legal Counsel about 
their understanding of the scope of Posse Comitatus and whether 
it would reach or not reach the activity, the specific activity 
proposed, versus this far-reaching Federal, State, local, 
tribal, civil, criminal application proposed to be begun on 
October 1st.
    We know more about what William Rehnquist and the Nixon 
administration thought about the scope of Posse Comitatus than 
we do about this administration. And we know from other 
sources, including the torture memos, that this administration 
has taken a very expansive view of its authority domestically 
in a wide range of areas. And, in fact, according to the 
torture memo there is a memo that was written by John Yoo in 
which he asserts that Posse Comitatus generally prohibits the 
use of the Armed Forces for law enforcement, absent 
constitutional or statutory authority to do so.
    Now, I would hesitate to associate myself with the comments 
or legal views of John Yoo. But if John Yoo has a memo out 
there, which we can provide you the full site, I think it is in 
my written testimony, you should have that memo and you should 
have any subsequent memos. You are entitled to those memos. 
This body is entitled to those memos. There is ample precedence 
from the Reagan administration for getting those memos. You 
should have the general counsel. But you shouldn't just have 
all assurances. You should have this in writing. And, more than 
that, the American people should have this in writing. We are 
entitled to this as a matter of our democracy.
    Obviously, there are things we can't know in terms of some 
of the specifics of the particular operations or sources or 
methods of those operations. But the fact of the matter is that 
there are fundamental constitutional principles at stake and 
statutory principles at stake.
    The suggestions that were made by the panel before us that 
this is useful in disasters, that this is useful in hurricanes, 
what they didn't tell you was that those are already exceptions 
that are long recognized in the law. This is not about the use 
of this technology in hurricanes or disasters. It is about the 
use of this technology for law enforcement purposes. And I 
referred in my testimony to the lengthy report of Professor 
Pyle who goes through why, from a constitutional perspective, 
it is essential that it not just be about having the military 
arrest people. The limitations on military surveillance, 
technology being deployed domestically are not just about that 
sort of really direct intervention law enforcement; it is much 
broader than that as part of our constitutional system. And 
there is good reason for that, and let me just give you two.
    One is, as Professor Pyle documents, and the Center of Sam 
Ervin also documented, the use, the direction of the military 
toward the collection of information about Americans raises 
substantial civil liberties concerns. As Senator Ervin said 
after his lengthy review of this, after a simple request, a 
request against the capacity of the Defense Department, that 
began with a simple request to help the Defense Department keep 
order, the Defense Department obtained files and created files 
on over 100,000 people, including Members of Congress.
    And the second point, let me conclude with this, is to say 
the second reason why this is so important is because public 
trust is essential for our national security. Public trust has 
been eroded by the unilateral actions of this administration 
time and time again. The public press is enhanced by the direct 
full intervention of this Committee of Congress in these 
important matters of our democracy, and public press is 
enhanced by the public's involvement in those debates. And so 
we would urge, along with the ACLU, that this program not be 
permitted to go forward as planned on October 1, and it should 
not go forward until it is fully investigated in a series of 
lengthy examinations by this committee and other committees 
examining the scope and rights of the American people.
    [The statement of Ms. Graves follows:]

                   Prepared Statement of Lisa Graves

    Chairman Thompson, Ranking Member King, and distinguished Members 
of the Committee on Homeland Security of the United States House of 
Representatives, we thank you for scheduling this full committee 
hearing so quickly to examine the administration's announced deployment 
of spy satellites to surveil Americans in the continental United 
States. The Center for National Security Studies appreciates the 
opportunity to testify about our grave concerns regarding this unwise 
and proposal made unilaterally and containing no checks against abuse. 
The Center was founded over 30 years ago to help protect civil 
liberties and human rights against erosion by claims of national 
security, in the aftermath of the first wave of disclosures to Congress 
regarding extensive, secret military and civilian government 
surveillance of Americans in this country.
    Kate Martin, the Center's director, and I work closely on 
surveillance issues, and the types of military surveillance of the 
civilian population first disclosed in news articles during the August 
recess pose significant threats to our constitutional system and civil 
liberties. The administration continues to be tone deaf on matters of 
civil liberties, with all due respect to my colleagues on the first 
panel--their comments are an after-thought, a sound bite. As the 
Chairman mentioned in his letter, this satellite deployment was 
basically a ``fait accompli'' by the time it got to the agency privacy 
designees this spring.
    At the outset, I would like to raise some questions and try to help 
clarify the scope of the surveillance at issue today. I will then 
discuss core constitutional and legal principles that call into 
question the extraordinary surveillance activities proposed. I will 
conclude by describing the need for more oversight and proposing some 
solutions.

    I. Civil Liberties and Privacy Concerns Raised by the Civil 
Applications Committee's Report.
    In May 2005, the Director of National Intelligence commissioned a 
Civil Applications Committee Blue Ribbon Study, which was completed in 
September 2005. Several of the Committee's recommendations, including 
the creation of the Domestic Applications Office in the ODNI have 
apparently been adopted. The domestic deployment of military satellites 
is also apparently the result of these recommendations. However, it is 
not known what other actions have been taken in response to these 
recommendations. It is important to understand the breadth, scope and 
danger of the recommendations.
    While the deployment of military satellites to monitor U.S. 
civilians has been the focal point of the press on this breaking story, 
the actual scope of Intelligence Community (IC) powers that could be 
deployed is broader than that, including ``national satellite sensors; 
technical collection capabilities (archival, current & future) of the 
DoD; airborne sensors; NSA worldwide assets; military and other 
``MASINT'' sensors; and sophisticated exploitation/analytic 
capabilities.'' Civil Applications Committee's Report (CACR), at p. 8. 
MASINT, which is the acronym for ``Measurement And Signatures 
Intelligence,'' describes technologies that ``exploit fundamental 
physical properties of objects of interest'' and techniques that 
include advanced radar, electro-optical sensors, infrared (including 
spectral) sensors, geophysical measures such as acoustics, and 
materials sensing, processing, and exploitation systems. MASINT is 
distinct from other techniques averred to in the report such as 
``imaging'' (photography, both still photography and real-time video-
type recording) and signals intelligence (SIGINT), which includes 
electronic surveillance, commonly called eavesdropping or wiretapping. 
While this list might sound like Big Brother incarnate, it might give 
some Americans comfort to know that these are the capabilities that 
have been created to protect us against foreign enemies. It should be 
obvious, however, that deploying these extraordinary powers against 
people in the U.S. would fundamentally alter the relationship between 
the government and the governed. Calling this ``Big brother in the 
sky'' is modest given the array of array that might be available multi-
headed, medusa-like powers to monitor Americans encompassed by this 
array of arrays.
    The Committee concluded that there is ``an urgent need for action 
because opportunities to better protect the nation are being missed,'' 
a finding contradicted later in the same report: ``During the course of 
the study no one said they were failing in their mission due to lack of 
access to IC capabilities. There was no `Burning Bridge' identified by 
the participating agencies and stakeholders.'' Compare CACR p.4 with 
id. p. 10 (emphasis added). To be plain, the question is whether this 
blurring of the lines between civilian and military activities is wise 
and prudent. The report has a view on that as well: while law 
enforcement has ``traditionally focused on arrest and prosecution and 
the IC on disruption and prevention. These mission foci are blurring'' 
and this blurring should be considered a `` 'feature' as opposed to a 
`flaw.' '' Id. p. 12.
    The report also casts a critical eye toward civil liberties, 
asserting that the protection of ``individual civil liberties'' and 
protection of sources and methods ``are the predominant concerns'' in 
the ``risk-averse'' environment. Id. p. 10. It then sets up a decision-
making process about deploying IC technology domestically in which the 
protection of civil liberties in just one of ten factors. The report 
then proposes ``fast-tracking'' consideration and decisions on such 
legal concerns. Id. p. 18. It is striking that Congress is not 
mentioned anywhere in the process for flagging legal concerns and 
deliberating about how to resolve ``issues on the boundary or not 
covered by policy.''
    While the report contends that a ``strict set of legal and 
protection of civil liberties guidelines would be followed,'' such 
secret guidelines could be changed at the direction of the executive or 
the whim of a zealous attorney at OLC, such as a John Yoo. That is 
precious little protection. In fact, the report relies upon the kind of 
now-discredited parsing of words engaged in by the Office of Legal 
Counsel in the first term of this administration. For example, one of 
the reasons why the report supports encouraging the U.S. Marshals 
Service to use IC technology is that because their job is to execute 
warrants by apprehending fugitives there is ``a very low probability 
the IC's involvement would be subject to a judicial proceeding,'' a 
kind of don't ask-don't tell/win-win situation according to the 
operating ``ethos'' of the report. See id. at p. 24.
    Even when reading legal precedents, the report puts its thumb on 
the scale of increasing surveillance of the American people, by 
providing a roadmap for activities that proponents would likely argue 
are permissible, if the government took more of a ``risk management'' 
rather than ``risk-averse'' approach to civil liberties issues:
         Warrantless ``aerial searches of private property'';
         Warrantless ``use of highly sophisticated mapping 
        cameras to photograph the interior of a building''; and
         Warrantless satellite surveillance of this same kind.
    The report does acknowledge that the Supreme Court recently held 
that thermal imaging of a residence without a warrant was unlawful. See 
Kyllo v. United States, 533 U.S. 27 (2001). However, the report notes 
that there is ``no clear authoritative guidance issued on the impact'' 
of this decision on the use of domestic MASINT.' CACR at p. 30. Despite 
this decision that post-dates other decisions relating to aerial 
searches, the report goes on to justify expansion by claiming that the 
Congress ``did not substantiate the allegations of the illegal use'' of 
photographic sensors to image domestic areas, hardly a ringing 
endorsement of doing so now. See id. The report is also critical of the 
``cultural aversion toward collection of domestic imagery based on 
concerns involving the potential of congressional oversight sanctions 
centering around 4th Amendment concerns.'' Id. at 32.
    The report credits the tragic events of 9/11 and the ``global war 
on terror'' with creating a better environment for domestic expansion 
of these authorities. And, the report suggests that simply having a 
Privacy and Civil Liberties Oversight Board is sufficient to ensure 
that Americans' privacy is being protected. The actual report of the 
PCLOB earlier this year demonstrated far from model oversight--the 
report was basically a rubber-stamp of White House initiatives. The 
White House's editing of the report led in part to the resignation of 
the only Democratic appointee of the five-member board. (Subjecting the 
board members to Senate confirmation, as the 9-11 implementation bill 
did, is unlikely to change the make-up of the board until the end of 
the next presidential term.) This utterly inadequate Executive Branch 
``check'' is no substitute for robust congressional oversight and 
judicial review to protect the Fourth and First Amendment rights of 
Americans. To the contrary, as the Committee recognizes, the PCLOB can 
be enlisted to help ratify, the domestic use of IC capabilities. See 
id. pp. 31--32 & n.11.
    It is also quite worrisome that the report recommends revising 
Executive Order 12333 that governs U.S. intelligence activities ``to 
permit as unfettered an operational environment for the collection , 
exploitation, and dissemination as is reasonably possible'' of domestic 
intelligence activities. See id. at p. 31 (emphasis added). We are also 
concerned that the report proposes a way around U.S. person rules by 
adding unique ID numbers to information derived through foreign 
intelligence electronic surveillance to make it easier to know more 
about subjects without their names attached. Id. p. 41. Lest any Member 
believe this issue is distinct from the disastrous changes in the law 
rammed through Congress before August vacation, it is clear that 
surveillance of Americans' communications is included in the report's 
recommendations for expanding domestic applications of satellite and 
other IC technologies. Yet it seems highly likely that there has been 
no forthright or comprehensive briefing of Congress on how this issues 
impact each other; certainly there has been no public debate to 
evaluate the potentially severe impact on the privacy rights of 
Americans.
    While asserting the need to abide by ``the rule of law,'' the 
report concludes that many rights ``have now been abridged at least in 
practice if not in law.'' Id. at p.38. The defense contractors call 
this the ``new normal'' and note that there is a whole body of 
``Presidential memoranda and executive branch decisions that direct 
certain actions and events that are germane,'' documents that it is 
highly likely the congressional branch, charged with writing the law--
in contrast to the executive branch that is charged with executing the 
law--has likely never even seen. See id. p. 39. The report concludes by 
positing a very troubling, Cheney-esque point of view, claiming that 
the Church and Pike Committee investigations ``created a hyper-
conservative view of what can be done.'' See id. at p. 42. It 
recommends that overseers should not look for ``black and white'' 
distinctions but instead ``experimentation'' should be the rule, while 
remaining thoughtful about the ``legitimate'' rights of Americans, 
whatever those may be. Id. at p. 43. That's a very sunny view, but the 
reality is that there is no country in the world where domestic 
intelligence collected in secret has not been misused by the government 
in power, usually against its political opponents, including the United 
States. The long-standing rules and understandings that this report and 
the DNI's proposed office seeks to undo would turn back the clock to 
the dark days when military surveillance of the American people was the 
``new normal,'' but would do so with exponentially better, more 
intrusive technology than J. Edgar Hoover ever dreamed of.

    II. Constitutional and other Legal Considerations Support Being 
``Risk Averse'' to Protect Rights
    The proposed expanded surveillance of Americans call to mind the 
1998 movie, ``Enemy of the State,'' where Will Smith's character is 
tracked by NSA and other government agents via satellite surveillance, 
through tiny GPS transmitters, via bank records, and through via 
electronic monitoring of domestic conversations and call data without 
warrants. It's just a fictional movie, of course, but it is one of the 
more recent visual depictions of some of the IC capabilities at issue 
here. In response to questions raised at the time of the film's release 
about whether the National Reconnaissance Office (NRO), which maintains 
the spy satellite network, could ``read the time off your watch'' NRO 
spokesman Art Haubold pointed out that, ``legally, his organization is 
not allowed to turn its surveillance systems on the United States.'' If 
the Domestic Applications Office is allowed to pursue the proposals 
made by the Committee, that assurance will no longer be true.
    The principle at stake, as stated by the NRO, was that satellite 
technologies were not allowed to be turned on the U.S. Now the 
administration spokespeople are left with saying don't worry, we won't 
be able to ``tell if you need a haircut,'' not the same kind of 
assurance at all. To the contrary, it implies the opposite of the 
uniform assurances made before this administration--now they might be 
watching but can watch you, they just do not yet have the technology to 
see everything.
    Less than a decade ago, commercial satellites could conduct what is 
known as panchromatic electro-optical surveillance with a resolution of 
one to .5 meters. According to public accounts, the actual resolution 
of military satellite technology four decades ago, in 1967, was one 
meter, which means the ability to distinguish objects almost three feet 
across. Recall the black and white photos later released regarding the 
Cuban missile crisis. There is no doubt that military technology has 
made dramatic leaps forward since then and while the true resolution is 
secret, public estimates are that the military can create visual images 
of much better quality than the commercial applications, in the range 
of 10--15 centimeters, or objects up to four inches across. That is why 
the Department of Homeland Security can claim there is no worry about 
seeing your haircut from space. To which I would add one word: yet. 
It's imminent.
    What this means is the government will have the capacity to 
photograph from satellites or platforms on high not just borders or 
buildings or missiles or cars but ordinary people. And there are the 
other sensors, infra-red, thermal, audio/greatly amplified hearing 
devices and the patented technological capacity to sort through 
conversations in a crowded room. There are GPS transmitters, which 
Americans rely on for driving directions or in their cell phones and 
which the government could easily use to track individuals.
    There is only one given in this debate: that technology will 
continue to improve. As Bill Gates has remarked, technology will 
improve often in ``great leaps over relatively short periods.'' The 
resolution of military satellite images and quality of other IC sensors 
are only going to get better and better, especially with the amount of 
money available for R & D.
    The rules for turning military satellites inward on the American 
people should not depend on how great the photo resolution and GPS 
tracking technology is at the moment. The rule should depend on 
principles, what the report disdains as ``black and white 
distinctions''. These conservative principles, which the report 
criticizes as ``risk averse,'' are the principles that have preserved 
our civilian democracy from military control. One principle that has 
been the glue that has preserved the compact between the citizens and 
the state is that the branch that uses power cannot be the branch that 
creates the rules for such use or enforces them. Turning military 
satellites and sensors inward on Americans should not be the unilateral 
decision of the DNI, or other intelligence officials, or of the 
proponents of the untrammeled executive power.
    Much has been said over the years about whether the Posse Comitatus 
Act applies or does not apply to a given activity. The posse comitatus 
statute itself has a bit of a checkered past, as it was passed a decade 
after the end of the Civil War in response to complaints by Southerners 
against federal troops still policing reconstruction efforts and in 
particular the rights of African Americans to vote. The statute makes 
it a crime to ``willfully use'' the military ``to execute the laws,'' 
except in cases ``expressly authorized by the Constitution or Act of 
Congress.'' Congress has created several exceptions over the years, 
such as emergency situations as with an insurrection or health 
quarantine as well as narrowly drawn exceptions for circumstances 
involving nuclear weapons or assassination. Other exceptions have been 
less well drawn, such as enforcement of federal drug laws, although 
that has been confined to the borders.
    It is plain that under the terms of the statute Congress can make 
exceptions, although it is not plain to us that every exception would 
pass constitutional muster. We believe that a new statutory exception 
for the deployment of spy satellites to spy on the American people 
without any judicial check would not only swallow the rule but would be 
unconstitutional. It does not appear, however, that the Executive 
Branch is asking for your permission or a statutory exception. It is 
instead a ``fait accompli.''
    I suspect their arguments are two-fold. First, that so long as they 
are not permitting the military to arrest a person they are not 
executing the law. (But the military has already taken a citizen and 
others into custody inside the United States without charges as ``enemy 
combatants.'') This would be a rather narrow interpretation of what it 
means to execute the law, especially for an administration that claims 
for itself maximum deference in its executive functions. The more 
sophisticated argument they might make on this point is that such IC 
capabilities would be passive, not directed at executing the law. (Such 
an argument might reach back to some lower court decisions stemming 
from the particular facts of the massacre at Wounded Knee where a 
military officer was reported to have directed law enforcement agents.) 
The statute should not be read so narrowly.
    On these points I would refer the Committee to the eloquent legal 
analysis of Dr. Christopher Pyle. As he demonstrates in his memorandum, 
``the primary objective of the Posse Comitatus Act has not been merely 
to forbid energetic, aggressive, intrusive assistance, but to forbid 
routine assistance as well.'' He presciently observed that ``the 
political pressures for information may cause the armed forces to 
redefine the `normal course of military operations' so as to re-involve 
the military in the surveillance of civilian political activity.'' This 
forecast unfortunately came true in the case of the recently abandoned 
``TALON database,'' which the Defense Department used to collect 
information on innocent Quakers and members of other peaceful religious 
groups that have spoken out against the war in Iraq. As Dr. Pyle noted:
        During the late 1960s, it was `normal' for the U.S. Army 
        Intelligence Command to dispatch plainclothes agents to observe 
        nearly every demonstration in the United States involving 20 or 
        more persons, to infiltrate domestic political groups, to 
        maintain huge data banks on dissidents, and to share 
        information about wholly lawful political activity with 
        civilian law enforcement agencies, including some with 
        notorious records for violating First Amendment rights. 
        Overseas, it was normal to open civilian mail, wiretap American 
        civilians, and violate confidential communications between 
        American civilian attorneys and their clients.
    (I would ask to make his full statement part of the record, as an 
attachment to my testimony.) While some of these specific activities 
have since been prohibited, the proposal to deploy satellite and other 
technologies involves the same dangers.
    I would submit that there are also larger principles at stake than 
that particular statute, based on the Constitution's structure of 
limited powers. For example, the Constitution means to make the 
imposition of martial law the rare exception by barring standing armies 
and forbidding the suspension of the writ of habeas corpus except in 
rebellion or invasion (and grants that power to Congress, not the 
president, in Article I). As Senator Sam Ervin noted: the 
``Constitution clearly contemplates that no part of the armed forces 
may be used in the United States for any purpose other than the 
following: (1) to repel a foreign foe; (2) to quell a domestic 
insurrection against the government; or (3) to suppress domestic 
violence which the states are unable to suppress without federal aid.'' 
Senator Ervin conducted a lengthy and thorough investigation of the use 
of the armed services to spy on Americans, and I would ask that a 
historical article and letter from him regarding military surveillance 
be included in the record as an attachment to my testimony. In his 
article, Senator Ervin noted that Congress had documented the abuses 
that occurred the last time the military was permitted to engage in 
domestic surveillance. Among the many examples cited, I would note in 
particular the following example from an Army Intelligence unit in 
Chicago in the late 1960s and early 1970s:
        He described how this unit targeted for surveillance 800 
        persons in Illinois, collected by overt and covert means 
        information about them, stored such information in dossiers, 
        and transmitted some of it to intelligence installations 
        elsewhere. Among those persons spied upon were Senator Adlai E. 
        Stevenson, Representative Abner Mikva, and United States 
        Circuit Judge and former Illinois Governor Otto Kerner, as well 
        as state and local officers, clergymen, journalists, lawyers, 
        and contributors to political and social causes.
    Senator Ervin also stated that through notes, recordings, and 
photography, the dossiers recorded the ``attitudes, aspirations, 
thoughts, beliefs, private communications, public utterances'' and 
financial information. The stated justifications for some of this 
surveillance was predict civil disturbances. In all, ``[m]ore than 
100,000 civilians were subjects of surveillance by military 
intelligence. . . . Their reports were fed into scores of computers and 
data banks across the country. No meeting or demonstration was too 
trivial to note; no detail of one's personal life too irrelevant to 
record.''
    While the military acknowledged its failings and adopted new rules 
to prevent such surveillance by individual personnel, Senator Ervin's 
warnings from the past about the need for clear rules are again 
relevant given the technology now available. History was already 
repeating itself in the TALON database and, while we welcome the 
announcement of its demise, the potential for mission creep by the 
military, with its enormous resources, is still quite dangerous. It is 
the nature of the military to take actions on a massive scale, with 
individual collectors simply following orders, collecting against 
requirements from on high. Indeed, one of the military's strengths is 
its massive force and capabilities. But this sledgehammer-like strength 
should not be deployed, even or perhaps especially via surveillance, 
against the American people as a whole or against selected groups or 
individuals here in the U.S., without judicial oversight, in response 
to requests by civilian law enforcement agencies at all levels of 
government seeking military involvement and assistance in the 
enforcement of all kinds of criminal and civil laws.

    III. The Need for More Complete Disclosure and More Investigation 
into this Matter
    Clearly, more investigation is warranted.
    Two years ago, the report produced by the non-governmental Civil 
Applications Committee recommended establishing a ``Domestic 
Applications Committee'' in ODNI to fund and accommodate access to 
current Intelligence Community ``collection and processing 
capabilities'' as well as to increase funding for R & D, acquisition 
and ``Tasking, Collection, Processing, Exploitation, and 
Dissemination'' (TCPED). In essence, military contractors studied the 
potential to use military resources domestically and agreed that these 
military resources should be used for domestic intelligence and 
domestic law enforcement with increased funding. I suppose one should 
not be surprised by this result.
    What should surprise, or at least offend, Congress is that in the 
two years the DNI has had this report and on the eve of its 
implementation it took the press to discover this revolutionary plan. 
It appears that this Committee was not informed that the DNI had begun 
to implement this taxpayer-funded study. (Although the administration 
told reporters that it had briefed ``key'' members of this Committee, 
as well as Appropriations and Intelligence, press also reported that 
neither the Chairman nor the Ranking Member of this Committee were 
aware of it before it was reported in the news.) There is no public 
record to support the conclusion that the DNI consulted with this 
Committee before striking a deal in May with the Department of Homeland 
Security and its secretary Michael Chertoff, to provide access to 
information about people in the U.S. collected via satellites flying 
over the U.S. There is no record to indicate that DHS sought advice 
from this Committee before entering into the reported Memorandum of 
Understanding (MOU) or that the Members of this Committee have seen 
this MOU and have a clear understanding of its scope, its intended 
effect and its likely unintended consequences.
    How many times have Director McConnell or Secretary Chertoff or 
their staff been up to Congress in the last four months or two years, 
making assurances and claims, without mentioning this massive expansion 
of domestic surveillance? How much longer can you continue to rely on 
assurances when time and time again Executive Branch officials have 
omitted key facts or provided you with carefully selected information 
in response to only the precise questions asked. This game of hide and 
seek is unbefitting a democracy.
    There is also no record to support the conclusion that Congress has 
any concrete estimate of how much this might cost or what the 
opportunity costs are of directing military satellites toward the 
American people, let alone a full and accurate assessment of civil 
liberties and privacy concerns, other than what has been presented by 
military contractors and political appointees of the Executive Branch. 
It is the nature of the Executive Branch to maximize executive power 
and discretion, which is why robust checks are essential. We have 
witnessed this inherent tendency in overdrive over the past six years 
due to the extreme views of Vice President Cheney about inherent, 
unlimited power of the president, views that have been adopted and 
implemented throughout the Executive Branch. Some of the related OLC 
opinions were written by the discredited John Yoo, whose views the 
subsequent head of OLC, Jack Goldsmith called ``tendentious,'' ``overly 
broad'' and ``legally flawed.'' See Jeffrey Rosen, ``Conscience of a 
Conservative,'' The New York Times Magazine (Sept. 9, 2007).
    I mention this background because in my observation Congress needs 
to establish its own Office of Legal Counsel for purposes of assessing 
the scope of authority under the Constitution and statutes, because the 
Justice Department's OLC has an institutional bias in favor of the 
branch within which it resides. In some ways the Congressional Research 
Service fulfills this role, but it has not been given the 
responsibilities or credit it deserves to be a counterweight to OLC's 
defense of presidential power and diminution of congressional controls, 
as evidenced in this recent period. Despite the great flaws in some of 
these OLC opinions, they are important markers for what the Executive 
Branch thinks it has the power to do. The tradition prior to this 
administration was to make almost all of the opinions that relate to 
the interpretation of public law public even if redactions were needed. 
And, yet, as we sit here today debating whether public statutes, such 
as the Posse Comitatus Act preclude the deployment of military 
satellites to target or track civilians in the U.S., this Committee 
does not have the relevant memos from the administration to assess what 
the administration thinks it has the power to do with or without the 
consent of Congress. Specifically, the administration apparently 
reinterpreted the Posse Comitatus Act, along with several other 
statutes in October 2001. As stated in footnote 16 of the OLC August 
2002 ``torture memos'':
        We recently opined that the Posse Comitatus Act, 18 U.S.C. s. 
        1385 (1994), which generally prohibits the use of the Armed 
        Forces for law enforcement purposes absent constitutional or 
        statutory authority to do so, does not forbid the use of 
        military force for the military purpose of preventing and 
        deterring terrorism within the United States. See Memorandum 
        for Alberto R. Gonzales, Counsel to the President and William 
        J. Haynes II, General Counsel, Department of Defense, from John 
        C. Yoo, Deputy Assistant Attorney General and Robert J. 
        Delahunty, Special Counsel, Office of Legal Counsel, Re: 
        Authority for the Use of Military Force to Combat Terrorist 
        Activities within the United States at 15-20 (Oct. 23, 2001).
    What does this memo say about using military force or tools, such 
as satellites or what is known as ``remote sensing'' data or devices on 
these shores? Was the administration's rhetorical argument that the 
battlefield is everywhere translated into legal opinions that would 
permit the military to electronically surveil Americans without 
warrants and seize and ``arrest'' civilians on the general ground of 
terrorism prevention, hold them in military brigs and detain them 
without trial. These matters are all inter-related and Congress has not 
yet gotten to the bottom of what has been wrought, although it has now 
begun to do so.
    We respectfully request that this Committee begin a comprehensive 
review, jointly with the Judiciary and Intelligence Committees, of how 
domestic surveillance powers are being used. As former CIA advisor 
Suzanne Spaulding has noted:
        The inquiry should start with an open question about the design 
        or efficacy of oversight and accountability mechanisms. The 
        inquiry should ask first whether some powers should ever be 
        granted to the government; whether the law or institutional 
        safeguards can ever be adequate to protect constitutional 
        government and individual liberties against the kind of power a 
        government will amass when it harnesses all potential 
        technological surveillance capabilities.
    The proposal to deploy military surveillance powers domestically 
only adds to the urgency of the need for a systematic review of 
domestic and foreign surveillance powers, as currently deployed and as 
proposed by the administration. In the absence of such an examination 
and full disclosure to Congress, no new surveillance powers should be 
approved and ratified.
    We also believe this Committee has a duty to insist on seeing the 
Yoo memo and any subsequent memos that attempt to justify domestic use 
of military satellites for intelligence gathering in the U.S. related 
to terrorism or for other purposes. Has this memo and any later 
clarifying memos by Jack Goldsmith or by officials at ODNI or elsewhere 
on the application of the posse comitatus or other restraints been 
provided to this Committee? If it has been provided, we would ask that 
it be made public to the extent possible. We suspect, given this 
administration's dubious claims of the need to classify or keep secret 
even interpretations of public laws, that the Committee has not 
received the Yoo memo or any others we have identified. We do not 
think, however, that the Congress should permit the Domestic 
Applications Committee to implement recommendations until these and 
other key documents are transmitted. Even then the Congress should 
examine carefully this dramatic expansion of the use of military 
resources in the US homeland against people in the US and withhold 
approval if the only case that is made is that it might have some 
utility.
    The administration seems to be operating under a variant of the 
bureaucratic dictum, it is easier to ask for forgiveness than 
permission: often they seek neither permission nor forgiveness. They 
simply act in secret, violating statutes such as the Foreign 
Intelligence Surveillance Act, until their unlawful conduct is leaked 
and then they investigate the whistleblowers. They then seek to 
legalize what they have done and institutionalize it with Congress' 
acquiescence. We are concerned that the administration plans to 
implement the domestic satellite spy program with or without the formal 
blessing of Congress, although it is possible that this expense is 
obscured in some ambiguous line in the so-called black budget.
    Congress, however, has some tools in its constitutional toolbox and 
should enact a funding rider to prevent any more American taxes from 
being spent on the Domestic Applications Committee or the 
implementation of the satellite-spying proposal. This House should use 
the power of the purse and let the president threaten to veto the 
federal budget over this, or the House should at least take steps to 
force the president's allies in the Senate, from whatever side of the 
aisle they hail, take a vote on the record in favor of spy satellite 
surveillance of the American people. Congress should not just let this 
proposed activity be implemented without those who support spying on 
Americans paying any price. Without such credible action by this 
Congress, the next 14--17 months at least will be filled with more 
liberty eroding policies being implemented without consequence. Once 
implemented, such programs and expenditures can be very difficult to 
undo.

IV. Conclusion
    Intelligence officers have sometimes described the IC's 
capabilities as a ``weapon.'' We believe these incredible powers should 
not be trained on the American people. The Center for National Security 
Studies stands by its initial fears about the proposed surveillance--it 
is big brother in the sky. The military surveillance activity that 
could be deployed unilaterally by this administration as proposed 
``experimentation'' is nothing short of revolutionary. We call on this 
Committee to continue to investigate this proposal and to withhold 
funding unless and until full information is received and it is clear 
that such capability is necessary and consistent with the Constitution 
and the protection of civil liberties. Thank you for considering our 
views.

    Chairman Thompson. Thank you very much. I thank the 
witnesses for their testimony. I now recognize myself for 5 
minutes of questioning, and I yield that time to the gentlelady 
from California.
    Ms. Harman. Mr. Chairman, I thank you for that. I apologize 
to you and our members and the witnesses for having to leave in 
5 minutes, but I have found this 3 hours extremely useful.
    You were all here and heard my rant to the first panel. I 
stand by that, but I would now add a few things and ask you a 
question.
    I like Mr. Steinhardt's idea about a moratorium. I think on 
a bipartisan basis this committee is very concerned, and Mr. 
Brown's comments could have been any of our comments in terms 
of the overreach of executive power into our homes in a way 
that we have not permitted. So, I think a moratorium is a good 
idea. The Committee will be sending a letter to Mr. Allen later 
today requesting all the materials that you have suggested we 
get. And, as far as I am concerned, I would like us to do 
whatever we can to delay this program proceeding until we have 
fully reviewed those materials. There is no intent to delay it 
unnecessarily, but we are on the front end of this, an 
expansion of the power to look into the activities of Americans 
in America, and we have to insist that it fully comply with our 
Constitution and our laws. And if the laws are not adequate, we 
have to add laws. So that is my first comment.
    My second comment is I agree with you on Posse Comitatus; 
we didn't get a full answer today. But I think the full answer 
is not as easily explained as it was by the couple of witnesses 
who tried to address it. They said they are not expert on it. 
And I know the history as you do, and I actually worked in the 
Senate when Sam Ervin was in the Senate. I am a fossil. So I 
remember that, and I remember how careful he was to protect 
Americans, and we had better take care again. So that is my 
second point.
    My third point is that we have been rolled on the Terrorist 
Surveillance Program in Congress. That thing was full blown 
before I as a member of the Gang of Eight was briefed on its 
operations. I was not briefed on the legal underpinnings until 
after the President disclosed the existence of the program. And 
I could consult a few people and come back to the Gang of Eight 
format and insist that we be briefed. But even now, facts are 
coming out. And the bottom line is, this is administration 
feels free to disregard the law Congress passes in exercising 
the President's Commander in Chief authorities. And there has 
been a very clear Supreme Court case on that, and it is called 
the Steel Seizure case that at least persuades me that the way 
they are proceeding is improper.
    So since we have been rolled, I intend not to get rolled 
again. And this is what I want your comment on. I think, unless 
we fully understand what is proposed--and I am not even certain 
Mr. Allen in his colleagues fully understand what is being 
proposed--and know--and I know Mr. Green feels the same way--
that we have some sort of careful Article 3 court review 
mechanism in place, we should just not go here. Just not do it.
    Like anyone else, I think we want to find out the plans and 
activities of those who would intend to harm us, including 
Americans. But if we give up our Constitution and our system of 
laws to find out those plans and activities, I think they win.
    So that is basically my comment on the philosophical 
question of how to proceed. And I have just a minute of time 
left, and I do want to respect my time limit here, so please 
answer me briefly, if you can.
    Ms. Graves. Let me just say, I appreciate very much your 
leadership, Congresswoman Harman. You have been a tremendous 
leader on these issues from the national security standpoint 
and taking due care for our civil liberties.
    Our concern echoes yours in that this unilateral activity 
basically, it is presented as a fait accompli. It is presented 
as they are starting October 1, whether you do anything or not, 
unless you do something to try to stop them, basically. And we 
think that is entirely the wrong way to proceed in this 
democracy. We think it is the wrong way to proceed from a civil 
liberties standpoint. And we don't have confidence given the 
track record of this department, even with their good 
intentions and, with this administration, that they will 
actually protect civil liberties. We know they are reviewing to 
rewrite Executive Order 12333, and we know that they are 
reviewing and have reinterpreted countless laws that we don't 
even know about. So we can't trust them and take their word for 
it.
    Ms. Harman. Thank you.
    Mr. Steinhardt. If I could add two points to that. I 
entirely agree with Mrs. Harman. There needs to be a time out 
here. There needs to be a break in order for the Congress to 
step in and make clear what the rules are.
    I would just say parenthetically, I didn't regard your 
earlier remarks as a rant. I thought they were forceful and 
insightful.
    Finally, I commend to the Committee an article that 
appeared in this morning's Washington Post on page D-3, if my 
printout is correct, that discusses how the Department of 
Homeland Security has dropped now the use of a large data 
mining program some of us have been concerned about known as 
ADVISE. And part of the reason they dropped it is not only 
really their inability to implement it, but also because they 
learned that in fact they had violated the law by using data 
involving real live Americans.
    Chairman Thompson. Excuse me, Mr. Steinhardt. We are going 
to have to go and do a vote. And in deference to the Committee 
members who stayed, I am going to ask them to do 2 minutes 
starting with Mr. Green.
    We heard you. We have already dispatched a letter to the 
Department talking about the Advise program and raising a lot 
of the concerns in the article.
    Mr. Steinhardt. Of course, Mr. Chairman.
    Mr. Green. Thank you, Mr. Chairman. And I sincerely thank 
you for your vision and your foresight and your willingness to 
host this hearing. It is exceedingly important. My comment will 
be brief.
    This is a technology that is not only omnipresent but also 
invisible. We will not know the extent to which it can be 
penetrate our privacy without sufficient oversight. The best of 
intentions are the means by which the road to a place that none 
of us want to go has been paved. I just think, Mr. Chairman, 
that we are at the genesis but there are revelations yet to 
come, and we are to shape the revelations. Thank you.
    Chairman Thompson. Thank you.
    Mr. Perlmutter.
    Mr. Perlmutter. Thank you, Mr. Chairman. Just a lot of 
thoughts based on your testimony, and just kind of a thought 
that I had. I had signed on to the impeachment bill of Alberto 
Gonzalez, and then I saw the Bourne Ultimatum the next night. 
And it made me nervous actually as to the capability and the 
capacity of this government to just look in on all of us. And 
that was confirmed for me, and it wasn't a government company, 
or it was a major corporation. I visited their plant. And the 
resolution of the camera that they had in the ceiling, just to 
be able to see just a tiny pore on my hand was unbelievable.
    So the fears that you all have expressed as to the capacity 
of the government, the potential for abuse are things that we 
have just got to deal with.
    You know, there is a piece of me that, though, thinks that 
there may be a proper component for law enforcement, I don't 
know all about the Posse Comitatus, but the proper role, so 
long as we have procedures in place that respect the rights of 
each and every one of us. And we haven't really had a chance to 
see if those procedures are in place and that the oversight is 
in place. And I am just glad that you two are looking at this. 
And hopefully that prior panel, you know, Congresswoman Harman 
has been a major supporter of the Intelligence Community, but 
she has also been a supporter of each and every one of us 
having our rights protected. And hopefully that panel got it, 
that this is something that is of major concern to all of us. 
And I am with you on the moratorium. Thank you.
    Chairman Thompson. Thank you very much. Now, chairman of 
the Oversight Committee for the full committee, Mr. Carney.
    Mr. Carney. Thank you, Mr. Chairman. I, too, want to 
associate myself with the much of what is being said here 
today.
    Now, I do have a quick question. Do you see from your 
perspective a use in satellites as a tool in law enforcement 
and protecting society?
    Mr. Steinhardt. You know, we are not Lignites; we are not 
saying this technology should be smashed and never used. What 
we are suggesting is there may be appropriate uses, but the 
Congress needs to establish what the procedures are before they 
can be used. And they need to be narrowly tailored, and we need 
protective rights. Let us do that first before we begin to 
understand the technology.
    Mr. Carney. Understood.
    Ms. Graves. And let me just say that that is the way the 
Posse Comitatus Act has proceeded in the past. It is written to 
provide for whether there is a constitutional exception, which 
I wouldn't say is just unlimited Commander in Chief power. But 
a constitutional exception, or statutory exceptions, that those 
can be created. Of course, an exceedingly broad statutory 
exception could be subject to the constitutional challenge. So 
we would obviously urge that Congress really have as much time 
as the administration had. They talked this morning about how 
extensive and lengthy and thorough their review was either in 
the last 3 months or in the preceding year and a half, by 
primarily political appointees. Whether it is the privacy 
officers or others, you should have at least that amount of 
time to unravel this and take a look at these issues. And we 
would support the moratorium on that basis as well.
    Mr. Carney. Thank you, Mr. Chairman.
    Chairman Thompson. Thank you very much. I think my comments 
have been echoed in the questioning and comments of the 
Committee.
    I want to thank the panel for their valuable testimony and 
for the members for their questions.
    Some of you may have noticed the empty seats there at the 
witness table. We had invited two DNI witnesses to testify at 
this hearing, and they declined the offer as they didn't want 
to be on the same panel as our friends from the ACLU and Center 
for National Security Studies. No offense to either one of you, 
of course.
    As I noted previously, this is a very serious issue, and 
one hearing alone will not suffice. I believe additional 
hearings and briefings are merited. DHS has promised certain 
get-backs to the committee. And, when they are provided, I hope 
to hold additional hearings. I have asked Ms. Harman and Mr. 
Carney to take the leadership on many of these issues, and I 
hope and expect that DNI will participate in those hearings.
    In addition, I think that the lack of answers and legality 
of the proposed programs require testimony from the general 
counsel of both DHS and DNI going forward.
    Hearing no further business, the committee hearing stands 
adjourned.
    [Whereupon, at 2:10 p.m., the committee was adjourned.]

                                 
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