A Real Bush Administration Assault on Civil liberties Posted by: Dale Franks
on Thursday, August 16, 2007
The Bush Administration has now approved a program that can be rightly considered a direct assault on civil liberties.
The Bush administration has approved a plan to expand domestic access to some of the most powerful tools of 21st-century spycraft, giving law enforcement officials and others the ability to view data obtained from satellite and aircraft sensors that can see through cloud cover and even penetrate buildings and underground bunkers.
A program approved by the Office of the Director of National Intelligence and the Department of Homeland Security will allow broader domestic use of secret overhead imagery beginning as early as this fall, with the expectation that state and local law enforcement officials will eventually be able to tap into technology once largely restricted to foreign surveillance...
A statement issued yesterday by the Department of Homeland Security said that officials envision "more robust access" not only to imagery but also to "the collection, analysis and production skills and capabilities of the intelligence community."
The beneficiaries may include "federal, state, local and tribal elements" involved in emergency preparedness and response or "enforcement of criminal and civil laws."
There is absolutely no way that I can ever support such a program.
First, I believe it to be a blatant contravention of the Posse Comitatus Act, which prevents military assets from being used in any domestic law enforcement role, absent a declaration of martial law. This satellite technology was specifically developed for military and foreign intelligence-gathering. It was not, and never should be, part of the arsenal of local police forces for any reason.
[T]he obvious application for the sneak-peek technology would be to avoid search warrants. If probable cause existed for a warrant, law enforcement wouldn't need the satellite technology; they'd simply enter.
That is exactly right. Law enforcement officials would use this as a shortcut to avoid the warrant requirement for searches. In cases where the police were unable to provide probable cause for a warrant, they'd simply use the surveillance technology, and begin gathering evidence without a warrant.
I find the decision especially egregious, in that the Supreme Court addressed this type of technology in Kyllo v. US (Sup Ct 99-8508) back in 2001, in a 5-4 decision that did not break down on ideological lines.
In that case, local law enforcement officials suspected Mr. Kyllo of doing a bit of illegal horticulture. Without probable cause to obtain a search warrant, they simply used a thermal imager to look for traces of high-intensity lighting that Mr. Kyllo was using to illuminate his Secret Garden. Armed with that evidence as probable cause, the nipped off for a warrant, and searched Mr. Kyllo's home.
The Court, in a decision written by Justice Scalia, concluded:
Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant.
So, until we all have these high-tech satellites, the Court has already held that their use constitutes an unreasonable search. Justice Scalia continues:
While it may be difficult to refine the Katz test in some instances, in the case of the search of a home's interior—the prototypical and hence most commonly litigated area of protected privacy—there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by sense-enhancing technology any information regarding the home's interior that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman v. United States, 365 U. S. 505, 512, constitutes a search—at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted...
Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The Court rejects the Government's argument that the thermal imaging must be upheld because it detected only heat radiating from the home's external surface. Such a mechanical interpretation of the Fourth Amendment was rejected in Katz, where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home. Also rejected is the Government's contention that the thermal imaging was constitutional because it did not detect "intimate details." Such an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details.
In other words, the Court has laid down a bright line for reasonability when it comes to the home. If the government uses a technology that is not in general public use in order to gather evidence that would otherwise be found only through a physical search, then the use of that technology constitutes a search. As such, the use of that technology would require a search warrant. But, of course, if you already have the probable cause necessary to get a judge to issue a search warrant, then you don't need the technology.
The technology, therefore, is only useful to obtain the evidence you want without having to get a warrant.
What law enforcement would love to do is get hold of technology that can provide probable cause for them that would be unobtainable in any other way than a physical search, and use it to obtain a warrant for a physical search. In essence, the Court has held that you can't perform what amounts to a warrantless search to obtain probable cause for a physical search.
To rule otherwise would allow the government to use sophisticated technology engage in "fishing expeditions" to gather evidence of crimes that they aren't even aware of. I don't see how anyone who is concerned with civil liberties can possibly support such an outcome.
If Federal authorities wanted to use this technology domestically solely for counter-terrorism or border enforcement, that would probably be fine. Those are, after all, Federal responsibilities, and the use of those assets would be in their purview. To give local law enforcement officials access to that technology to combat street crime, however, invites such serious abuse that the 4th Amendment would essentially be a dead letter in this country.
I agree, in basic, with what you say, but I think you might be missing a possible application...
Law enforcement officials would use this as a shortcut to avoid the warrant requirement for searches. In cases where the police were unable to provide probable cause for a warrant, they’d simply use the surveillance technology, and begin gathering evidence without a warrant
Of it could possibly be used to surveil Possible terrorist suspects.
After other information placed someone under heavy suspicion (like the guys from the NJ Army base), using this sort of tech could really increase the number of people you can try and convict, in addition to helping identify others who would be giving aid, or show you who they might be talking to that we don’t know about yet.
But for the rest, yeah... If this is used to GET probably cause, there’s a huge problem. However I would hope that there would be serious attention given to that, and such violations would sh*t-can investigations due to "fruits of the poisonous tree" rules.
But McQ I have a question: If probably cause already exists absent use of this technology, and this technology is then used to increase the amount of evidence/surveil for co-conspiritors, do you have the same issue with it?
To H3LL with Civil Liberties!! How about sharing the data with the D@mn company/battalion/brigade commanders in Iraq and Afghanistan?!?! The Powers that Be are apparently LOATHE to share this data, for fear it will fall into the "wrong hands." But we’ll share with Barney Fife? Hey how about this data falling into the wrong hands, HERE? If anyone needs good iamging it’s troops in the field, a helicopter or an Airborne Reconnaissance Low flight will do for most everyone else.
And that’s how it happens, folks. A star is born. We now have a generic name for the blogger/commenter. "I was reading some McQ over at ..."., or "The McQs over at X have gone overboard on this one". I am not sure whether you should be flattered or not. Ask Mr. Mulligan how he feels.
Satellites not in general public use? Remember Google Earth? Wanna see my neighborhood from space? Perhaps photos of Area 51?
If the fact that the satellites are owned an operated by the military is the issue, would CIA equipment work as well? Why not transfer the some satellites to the FBI? Then they’d be strictly civilian.
Of course, UAVs would be cheaper and a closer analogy to helicopter observation which the courts have found legal. And less intrusive than putting CCTV cameras all over the place like the Brits.
I do agree with one thing though. No technology that "sees" or senses through roofs or walls.
I agree with this, however what if it is used after getting a warrant? In instances where they want to do "no knock raids" that have resulted in the death of many people (officers and innocents), this could help.
However I have little confidence it would be used this way, and no confidence at all it would be confined to this type of use.
If Federal authorities wanted to use this technology domestically solely for counter-terrorism or border enforcement, that would probably be fine. Those are, after all, Federal responsibilities, and the use of those assets would be in their purview. To give local law enforcement officials access to that technology to combat street crime,
is what I assume you mean...
I asume terrorism is a crime, and frankly if state/local law enforcement want to hunt it as well, that’s fine. Look at NYC’s look at home grown terrorism...
As for other surveilance, I know several cities that could benifit for overhead images to detect crime. I don’t mean crime happening indoors, I mean street violence like drive-bys and the like.
Don’t get me wrong, this is rife with areas of potential abuse, but the supreme court ruled a while ago on a case involving a tracking device and what it could and couldn’t be used for. This seems to fit perfectly in "it can aid in locating, but only if it would still be observable in plain sight".
Even completely honest application of this program constitutes abuse.
I’m just not prepared to trade liberty for security, being that security would be nebulous at best.
It’s easy to commit crimes in a free society, there is no way around that. If you try make it hard to commit a crime, you risk the whole free society thing.
The Posse Comitatus Act (18 USC 1385) refers to: ... uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws ...
It does not refer to "military technology" or things developed originally "for the military".
The point of the Act was and is to prevent the Armed Forces being used in a law enforcement role; as police (originally, to supervise elections during Reconstruction, in fact).
I don’t know where the idea that law enforcement use of spy satellite data is somehow prohibited by the Act comes from; the National Reconnaissance Office is part of the Department of Defense, but in no way is providing satellite imagery "execut[ing] the laws" - nor is it part of the Army or Air Force (or using the same extension that DoD itself uses in its regulations, is it part of the Navy or Marine Corps).
Now, it may well be a bad idea on civil liberties grounds to allow this, and perhaps Congress should prohibit it by amending the Act or adding a new law - but it simply does not violate the Act, as near as I can tell.
(And about "gathering information without a warrant" - that is, of course, not illegal, so long as it does not constitute a ’search’. Cops don’t need a warrant to look at the outside of your house with binoculars. The only possible problem with this from that point of view is the Kyllo-related infrared searches... which I can’t find details about, since the Post link to the WSJ article is broken.
Suffice it to say, however, that infrared imaging isn’t exactly unknown in civilian use. Maybe the Government should just subsidise the sale of some IR cameras to make IR imaging commonplace, thus removing the Kyllo objection.)
Captin: What "liberty" is surrendered here, exactly? The non-existent liberty of not having the roof of your house visible from above?
It’s a disaster. And it’s only half the story. The other half is the new explicit legal power to wiretap one-party foreign calls, with extremely vague legal requirements on how certain they have to be that one of the parties is, in fact, foreign.
And the Republican party voted for it unanimously.
The other half is the new explicit legal power to wiretap one-party foreign calls, with extremely vague legal requirements on how certain they have to be that one of the parties is, in fact, foreign.
You mean those communications that should have no expectations of PRIVACY, because they originate in a nation to which the provisions of the US Constitution DO NOT APPLY.
And the Republican party voted for it unanimously.
because they originate in a nation to which the provisions of the US Constitution DO NOT APPLY.
Unless it’s a US citizen originating the call from inside the US, in which case - who are you to tell me that the Constitution doesn’t apply to me? The whole point of the constitution is to make your statement impossible and unprintable.
Your administration decided it didn’t apply, because it fundamentally doesn’t believe that US citizens have rights when those rights contradict it getting something it wants.
Captin: What "liberty" is surrendered here, exactly? The non-existent liberty of not having the roof of your house visible from above?
It’s a little more than looking at the roof of my house, isn’t it?
A statement issued yesterday by the Department of Homeland Security said that officials envision "more robust access" not only to imagery but also to "the collection, analysis and production skills and capabilities of the intelligence community."
And since the technological capabilities of our satellite data gathering operations are highly classified, we have no idea exactly what information they can gather, and as long as it is not used domestically, on US citizens, we don’t need to know.
The tools and people who perform surveillance outside of the United States for the purpose of national defense are the "military", or part of the defense structure, if you prefer. When you bring these resources to bear on citizens of the United States, within the borders of the United States, without a warrant for anyone who’s information will be gathered, to assist domestic law enforcement, you have violated the spirit and the letter of the Posse Comitatus Act.
How is this different from having the CIA actively working within the borders of the US?
This is not a slippery slope, this is dramatic change in what we consider to be the fundamental rights of American citizens.
This is really creepy to me, because I thought libertarians and conservatives would be universally aligned against such activities by the federal government. What defines conservatives anymore? Sounds like the only requirement for being a conservative is a point of view that says, "Don’t let the federal government take my money or property (by taxation or otherwise) but they can have anything else they want."
Seems to me these tools should be okay for detecting hate crimes in planning or violations of the trans fat ban in NYC or perhaps to maintain accurate counts of minority ratios in higher ed institutions.
