Homeland Security Watch

Comment by William R. Cumming

November 12, 2008 @ 9:24 am

The NAO should be considered a permanent part of DHS. It has a difficult task because of the need to move from the classified world to the unclassified world and back and forth. This means unusal ability in the leadership and staff that has credibility with all users and adequate funding and contract support.
Tragically, in the past, e.g. the federal response to Hurricane Andrew which made landfall twice in August 1992, and almost cost Florida the election for President George H.W. Bush (although he ended up winning in Florida but losing the election), satellite imagery was in FEMA but not made available to either the FEMA leadership or the White House resulting in a very very serious misunderstanding of the impact of the hurricane on South Florida. Lives may even have been lost because of this failure to come to closure on procedures and processes for integration of satellite imagery in disasters. Now, even more important DHS has a variety of missions for the NAO’s programs, functions and activities that seem very legitimate to me although also at the high end of the so-called “Wicked Problems” label that the Public Administration types use to characterize difficult public administration issues. So be it because it must be done.
Perhaps NAO could learn from the EPA experience in attempting to use satellite imagery for environmental enforcement which raised of course Constitutional 4th Amendment and 5th Amendment issues (search &seizure and self-incrimination). EPA experience intersected with Congressional oversight and DOJ/OLC review and that history should be made public and available. Perhaps this would help the NAO’s legal support staff, and of course here is hoping that it has such because some of the most sophisticated legal issues outside of off-shore interrogation tactics are involved and controversy is not only possible but likely including court challenges.

Comment by Michael S-G

November 13, 2008 @ 3:51 am

Peter – How does DHS plan to separate the law enforcement and the FEMA-related disaster relief activities of this programme? It seems that these have very different ends and need to be regulated separately. I’m not sure that anyone would want DHS in charge of advanced satellites without the “suitable transparency, firm judicial oversight, and accountability regarding methods and procedures” which you mention as absent.

Also, with the amazing use of Google Maps and Google Earth following Hurricane Katrina, the the Indian Ocean Tsunami in 2004, to what level does this need to be a ‘private’ programme?

Comment by Peter J. Brown

November 13, 2008 @ 9:11 am

All good questions. One of the real challenges from the law enforcement standpoint leaving aside the FEMA operations angle for a moment is how the metadata — the digital tagging system that allows for the orderly storage and rapid retrieval of data — will evolve. This will go far beyond the conventional realm of evidence gathering and filing as it will be highly unlikely that surveillance data will simply be captured and distributed on a one-time basis, for example.

Once the courtroom door opens, this will become much more complicated than the admission of the El Hage satellite phone intercepts, for example, which were entered into evidence during the federal district court case in the Southern District of New York (UNITED STATES OF AMERICA v. S(7)98CR1023 USAMA BIN LADEN, et al.) in May, 2001. This mention of satellite phone intercepts is meant to serve as a reminder of the ELINT dimension.

Think about the prioritization issues that have to be addressed. Saying that NAO will simply serve as the gatekeeper in this instance, and that all satellite data and imagery requests for access to this data will be handled accordingly glosses over the scale of the undertaking, let alone likelihood that mission creep will set in.

There is another key consideration. While everyone may be focusing on the satellites, it is really the expanded use of aerial sensors — standalone or as part of integrated sensor suites — that needs to be addressed. This is not relevant to the existing real-time or near-real-time satellite imagery disaster response activity overseen by FEMA, National Guard — such as “Eagle Vision” –and NORTHCOM under the existing NRF, for example. However, once the door opens to satellite surveillance, look for Unmanned Aerial Vehicles or UAVs such as the Predators and the much larger, higher-flying GlobalHawks. of course, UAVs have been performing surveillance missions over the California wildfires and other natural disaster sites without any mention of operators or users of the imagery in question being given training that addresses “protection of sources and methods, privacy, civil rights and civil liberties” to quickly cross the line into law enforcement operations.

Why not use UAVs once satellites are given the green light? UAVs can loiter far longer on scene, that is, undertake longer surveillance missions in general in a manner far more persistent, at a much lower cost and at a much lower altitude than any satellite. We should also not overlook more capable aircraft designed and equipped for multi-mission enforcement activities such as the planes recently requested by CBP, for example.

I refer you again to the GAO “National Applications Office Certification Review” — http://www.gao.gov/new.items/d09105r.pdf — issued on November 6 where GAO states on p.3,

“Specifically, DHS has not resolved legal and policy issues associated with NAO support for law enforcement. The NAO charter states that requests for law enforcement domain uses (i.e., activities relating to enforcing criminal or civil laws or investigating violations thereof) will not be accepted by the NAO until interagency agreement is reached on unresolved legal and policy issues. An independent study group had determined that the legality of using satellite imagery of domestic subjects for law enforcement purposes raised difficult issues that had not been fully settled. Work has begun to address these issues, and the department now plans to recertify the NAO’s compliance with all laws before accepting requests related to law enforcement. Recertification following the resolution of legal and policy concerns will be an important element in providing assurance that NAO operations are in compliance with all applicable laws.”

Pingback by Guest feature on the National Applications Office | Homeland Security Watch

May 18, 2009 @ 4:13 am

[...] a journal of the American Medical Association (subscription required).  He has also previously addressed the NAO and the National Emergency Communications Plan here at HLSwatch. Share This [...]