Increased Domestic Role for Intelligence Foreseen

Spy satellites and other classified intelligence technologies are poised to play a greater role in domestic homeland security and law enforcement missions, challenging long-standing legal and policy barriers against their domestic use.

The Wall Street Journal reported today that the Director of National Intelligence recently authorized access to intelligence satellite products by officials of the Department of Homeland Security to help support border security. See “U.S. to Expand Domestic Use of Spy Satellites” by Robert Block, Wall Street Journal, August 15, p.1.

A comprehensive 2005 government study (pdf) of the use of intelligence capabilities for domestic applications concluded that “significant change is needed in policy regimes regulating domestic use of IC [intelligence community] capabilities” in order to permit their full exploitation.

“The use of IC capabilities for domestic purposes should be… based on the premise that most uses of IC capabilities are lawful rather than treating any use as an exception to the rule requiring a case-by-case adjudication,” the study said.

“There is an urgent need for a top-down, Executive Branch review of all laws and policies affecting use of intelligence capabilities for domestic purposes,” the report said.

In particular, the 1981 Executive Order 12333 which governs intelligence activities “should be amended to permit as unfettered an operational environment for the collection, exploitation and dissemination [of domestic intelligence data] as is reasonably possible,” the report recommended.

The authors acknowledged that such “unfettered” operation would require increased oversight, but they suggested that it could be satisfactorily accomplished by the Privacy and Civil Liberties Oversight Board. The Board has been a minor, not notably influential player in recent intelligence policy disputes.

The report acknowledged in passing a problematic 2001 U.S. Supreme Court ruling in the case Kyllo v. United States, which concluded that the use of infrared sensors to scan a private residence for heat lamps used in marijuana cultivation constituted an unlawful warrantless search. The ruling appears to be significantly at odds with the new domestic intelligence thrust.

“This decision has placed in question the continued viability of past settled practice of the IC within the domestic domain,” the study delicately observed.

Nevertheless, “to date we are not aware of any clear authoritative guidance issued on the impact, if any, of this decision.”

The 2005 study was first reported by the Wall Street Journal today. A copy of the unclassified study, which was “produced solely for the use of the United States Government,” was obtained by Secrecy News. See “Civil Applications Committee (CAC) Blue Ribbon Study,” Independent Study Group Final Report, September 2005.

Intelligence support to domestic environmental monitoring and emergency response has been conducted since the 1970s under the supervision of the little-known interagency Civil Appplications Committee. See this 2001 fact sheet describing the history and mission of the Committee.