Hearing of the House Committee on Homeland Security

HEARING OF THE HOUSE COMMITTEE ON HOMELAND SECURITY
SUBJECT: TURNING SPY SATELLITES ON THE HOMELAND: THE PRIVACY AND CIVIL LIBERTIES IMPLICATIONS OF THE NATIONAL APPLICATIONS OFFICE

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REP. PETER KING (R-NY): Thank you, Chairman Thompson. And with you, 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's essential that we be brought in at the start, not find out about it from press reports after the fact.

I have a great regard for Mr. Allen. I am confident this will not be repeated in the future, but I just want to emphasize that I fully agree with the chairman on this, that this was not handled properly. And again, we're not just talking about questions of technicalities of procedure. We're 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's still no reason why -- and the reason I said I don't see a Fourth Amendment issue here, but again, as the testimony comes out today and we hear especially from the second panel of witnesses, yeah, there may be issues raised that cause concern.

And also it's 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's 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 request of the DNI to have the deputy director of National Intelligence for Collection and also the DNI's 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 -- offering them to testify at the second panel in an adversarial role to me defeats the purpose of what we're trying to do here as a committee. So I think that again, Mr. Chairman, I'm disappointed in your decision not to have them -- or not to give them the opportunity to testify with the government panel.

Having said that, I'm sure that this panel will give us much of the information that we need. I also look forward to the testimony of members on the second panel. And I think it's important to keep in mind that we're talking about here confronting an enemy which is attempting to destroy us.

It is essential that we do have effective surveillance. It's essential that we use all the necessary tools. From what I've learned so far, I believe sufficient protections are in place, but again we could have avoided 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 -- Congressman Carney also, Oversight Committee -- we'd be a lot further along, I think, standing together in a much more bipartisan way, if it had been done that properly -- that way from the start.

So with that, I yield back the balance of my time. I thank the chairman for calling this hearing and I look forward to the testimony.

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REP. KING: Thank you, Mr. Chairman.

First of all, thank you for your testimony. Also, it's my understanding that the conversation between you and Mr. Allen, the concept of operations and privacy impact assessment were given to staff of the committee on August 17th. I think this is the document we're talking about, but -- in any event, I have it here.

I've been listening 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 till now or could have been done ad hoc up till now?

MR. ALLEN: Congressman King, there is nothing new in the sense we've done this in the past for Homeland Security when we've had hurricanes, disasters. The Civil Applications Committee is well- established and it still has to go through, you know, the overview of NGA attorneys before any of its request is acted upon.

As far as law enforcement, we haven't begun that. We're going to stand up a working group between ourselves, DHS attorneys, DNI and the Department of Justice. So there's nothing new. It will be a broader customer base, I believe, once we are able to tell the non-Defense 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.

REP. KING: Now, has this been shared with law enforcement before?

MR. ALLEN: This has -- the law enforcement, there is a legal law enforcement working group that's standing up of Justice, the director of National Intelligence and Department of Homeland Security. They're aware of it and they're looking at applications.

As you know, on an ad hoc basis the National Geospatial- Intelligence Agency, under the aegis of both the DCI and now the DNI, 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.

REP. KING: My understanding was when we had the D.C. snipers five 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 read out line-of- sights, places where snipers might hide. It was used, and Director Mueller, as I recall, was very gratified.

REP. KING: Now, I'm trying to determine whether constitutional issues may arise here. Is there any thermal imaging involved in this program, as far as being able to penetrate residences?

MR. ALLEN: No, we will not be -- it will not penetrate residences. This is not going to penetrate buildings. There will be -- there can be some infrared collection from space to look at fire spires, hotspots. We've used this to support the National Fire Service for decades. It was used long before the proposal was made to establish a National Applications Office.

REP. KING: If I could ask, then, Mr. Sutherland and Mr. Teufel -- the both of you -- is there any Supreme Court case on point involving a Fourth Amendment issue which will pertain to anything which would come under this program?

MR. SUTHERLAND: (Off mike consultation.) We're coordinating our thoughts on different Supreme Court litigation.

There is Supreme Court litigation that sets the parameters under which we will evaluate the program. And there was the Supreme Court a few years ago on thermal imaging that you're 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'll evaluate the specific requests that are made.

MR. TEUFEL: There is the CAC's decision with the language about reasonable expectations of privacy and there is well-established case law on when law enforcement can fly over in airspace and take pictures.

But understand that while we're both lawyers, we're not practicing as lawyers currently in our position.

REP. KING: I guess I'm getting at there's been talk about spies in the sky and spying and snooping and everything else, but I'm just wondering if there's anything under this program which has not been done for at least 30 years on both Democrat and Republican administrations -- for instance, whether it's inaugurations, whether it's hurricanes -- which, as I see it, is what you are going to continue doing, but now it's going to be more consolidated and more coordinated.

MR. ALLEN: Yes, Congressman King, we use it for border security. We're trying to determine how best to employ its capabilities for border security, for seaport security, critical infrastructures. It's very helpful. And for national security events it's been used rather prolifically in the past, as well as natural disasters, including forest fires and earthquakes. And of course, it was used immediately after September the 11th. Within a half an hour, we had a -- using a sensitive capability, we could see the extent of damage in New York City.

REP. KING: Thank you, Mr. Chairman.

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