Hearing of the House Committee on Homeland Security - Turning Spy Satellites on the Homeland
REP. THOMPSON: The Committee on Homeland Security will come to order at the committee's meeting today to receive testimony on "Turning Spy Satellites on the Homeland: The Privacy and Civil Liberties Implications of the National Applications Office."
The department chose Congress's 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'm 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 sheriff's offices nationwide.
Apparently, we weren't the only ones left in the dark. Despite my repeated requests that 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. Rigorous privacy and civil liberties protection must be baked into from the beginning, and your department's experts on these topics was shut out.
Furthermore, the National Applications Office 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 this time is beyond me.
Indeed, they only recently began their work. We're here today to help 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 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 would be a useful witness and who will not. I had a reason and a purpose for asking him to testify, and his absence created 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 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, 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 liberties experts on the consequences of failure to get it right.
We welcome our panel of witnesses, and I now yield to the ranking member for his statement.
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REP. 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 open 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 and -- 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 focus 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.
Without objection, the witnesses' full statements will be inserted in the record. I now ask each witness to summarize his statement for five minutes, beginning with Mr. Allen.
MR. ALLEN: Chairman Thompson, Ranking Member King, members of committee, thank you for the opportunity to speak about the National Applications Office.
I'd 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 will ensure that full protection of civil rights, civil liberties and privacy are applied for 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, non-defense national security uses.
My staff and I have worked closely with the CAC to ensure that the stand-up of the National Applications Office, with a 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 stand-up 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, 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 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," close quotes. It 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, co-chaired 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 of 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 man-made 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-case basis, law enforcement customers to articulate their requirements to determine how our satellite imagery systems may be able to satisfy them and submit any validated 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 other 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'm 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 exception (sic), 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 protects 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 long-standing practices of employing these capabilities with full regard for the privacy and civil liberties of all Americans.
The rules for lawful and appropriate use of 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 assure 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.
REP. THOMPSON: Thank you, Mr. Allen, for your testimony.
I now recognize Mr. Sutherland to summarize his statement for five minutes.
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 us, as is Secretary Allen and his staff and our colleagues in the Privacy Office, to assure that the new NAO meets that highest level of effectiveness.
And 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 these 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 of the issues that have faced the Homeland Security effort from the Hurricane Katrina recovery to the operation of watch lists to immigration policy to the training of our work force. 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 of 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're 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've 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've established a solid working relationship with the NGA where these applications will come from.
So the first reason that we believe that there's a protection of civil liberties is that it's being built into the infrastructure as we begin to operate the program. And the second reason why we're optimistic is 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 related to radicalization and engagement with American Arab, Muslim, Sikh and South Asian communities and extremism that our country is facing. We describe some of that work in previous meetings with staff members here and in testimony in front of this committee.
We're also heavily involved in the department's information sharing environment efforts, which are led by I&A, and this year we've begun working on fusion centers and helping in terms of training and other work that I&A 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's a strong track record we can build on.
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."
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's already referenced several of the safeguards; let me just mention them again.
First, we're working with the NAO to implement the CONOPS for the office. The CONOPS integrates in a protection -- the role of the Civil Rights and Civil Liberties Office as well as the Privacy Office.
Secondly, we're working on standard operating procedures and will make recommendations related to the extent and process for our review of NAO requests.
We've already begun working with and assured that we're 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 the privacy and civil liberties issues are fully fitted in the ongoing work of the NAO.
So fourth and finally and maybe most importantly, we will provide training on these issues. We've 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 this month.
And we believe that our training efforts should extend beyond DHS employees in the sense of customer education on civil liberties. That's one means of warding off potential misuse.
I want to thank you for inviting me to share our thoughts in the National Applications Office and I look forward to working with this committee to provide oversight of this important program. Thank you.
REP. THOMPSON: Thank you, Mr. Sutherland, for your testimony.
I now recognize Mr. Teufel to summarize his statement for five minutes.
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'll 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 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.
And 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 mapmaking and environmental uses, there was an ad hoc approach to the use of NTM with NGA attorney and programmatic oversight, but not much else. And 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's increased focus on intelligence and the intelligence community. We have been working with I&A 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 I&A or the intelligence community 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.
And with that, I'm concluded. Thank you very much.
REP. THOMPSON: Thank you very much. I'd like to thank the witnesses for their testimony.
I'll remind each member that he or she will have five 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've been working on issues of a concept of operations. That's been finished and submitted, I believe, to Capitol Hill, including your office.
We're working on guidelines. We're working on standard operating procedures --
REP. THOMPSON: Excuse me, I don't -- I'm not certain if we have that, that you --
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're not asking for new authorities or new forms of legislation because this operates under the National Security Act of '47, Executive Order 12333, the Homeland Security Act of 2002 and, as Mr. Teufel said, under the Privacy Act, and we meet all those standards.
We will give you that framework and the guidelines that we've developed, Mr. Chairman.
REP. THOMPSON: Thank you, but 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 could 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.
REP. THOMPSON: And I think it's important for you to provide this committee with all of the information that you propose to operate this program under going forward. Do you have a timetable under which we can expect receipt of this information?
MR. ALLEN: We will provide you with the concept of operations today. I thought your committee had it, and if it doesn't, I apologize.
REP. THOMPSON: Okay. 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 --
REP. THOMPSON: Not office, the board.
MR. ALLEN: Oh, 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.
REP. 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 request, then I will be satisfied.
There is some question as to whether they really know, Mr. Allen -- I want you to understand that.
MR. ALLEN: Thank you. We'll take that for the record and get back to you.
REP. 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.
REP. 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 were -- I know Hugo can speak to this more -- but more intricately involved as the spring came along, and we were drawn in the law few --
REP. THOMPSON: Well, is your involvement at this point -- just explain your involvement.
REP. KING: Yes, sir. We have been extremely, intricately involved over the past few weeks. We're working on helping to develop the standard operating procedures for the NAO; we're 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've 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.
REP. THOMPSON: Well, 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'm sorry, sir, again?
REP. 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 preseason. The regular season's going to kick off October 1st. 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's no doubt we should have been brought in earlier.
But we are at a stage now where we feel comfortable we're able to make a large impact and really benefit the NAO with our expertise.
REP. THOMPSON: Thank you very much.
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REP. THOMPSON: Thank you.
But the point for the committee's sake at this point is that at present, there's no such approved document that guarantees just what Mr. Lungren says, other than the Constitution of the United States.
MR. SUTHERLAND: Well, Chairman Thompson, right now there is a concept of operations document that is set as final and I believe it's been provided to staff. But this is what Assistant Secretary Allen was saying earlier. He'll make sure that's in everybody's hands by the end of the day.
But of the upcoming weeks, we have a standard operating procedures document and other documents like that, and as I think we've been saying, we clearly need to be working with the committee as we form those in giving you visibility on those to give everybody the level of comfort that they need to have.
MR. ALLEN: That's correct. We provided, I believe, the concept of operation on the 17th of August. As you know, we've also worked with the intelligence committees to ensure they had no concerns and briefed them as well as the appropriators. So --
REP. THOMPSON: But Mr. Allen --
MR. ALLEN: You need to have more materials to satisfy your needs.
REP. THOMPSON: You briefed the appropriators but not the authorizers. I think that's 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 HPSCI, which authorizes my budget since it falls under the national intelligence program. We did not brief you from an oversight perspective, and I've apologized for that.
REP. 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 interests of any of us for that -- October 1 to come with you implementing that program.
I yield five minutes to the gentleman from Colorado, Mr. Perlmutter.
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REP. 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 have maybe 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've 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've asked Ms. Harman and Mr. Carney to take the leadership on many of these issues, and I hope and expect the DNI will participate in those hearings.
In addition, I think their lack of answers and legality of the proposed programs requires testimony from the general counsel of both DHS and DNI going forward.
Hearing no further business, the committee hearing stands adjourned. (Sounds gavel.)