Res Communis

by P.J. Blount with the blog faculty

Secrecy News points to two new CRS reports on Space.

The first is Satellite Surveillance: Domestic Issues, which includes an analysis of legal issues:

Summary
Reconnaissance satellites, first deployed in the early 1960s to peer into denied regions of the Soviet Union and other secretive enemy states, have from time to time been used by civilian agencies of the federal government to assist with mapping, disaster relief, and environmental concerns. These uses have been coordinated by the Civil Applications Office at the U.S. Geological Survey, a component of the Interior Department. Post 9/11, the Bush Administration has sought to encourage use of satellite-derived data for homeland security and law enforcement purposes, in addition to the civil applications that have been supported for years. In 2007, it moved to transfer responsibility for coordinating civilian use of satellites to the Department of Homeland Security. The initiative was launched, however, apparently without notification of key congressional oversight committees.

Members of Congress and outside groups have raised concerns that using satellites for law enforcement purposes may infringe on the privacy and Fourth Amendment rights of U.S. persons. Other commentators have questioned whether the proposed surveillance will violate the Posse Comitatus Act or other restrictions on military involvement in civilian law enforcement, or would otherwise exceed the statutory mandates of the agencies involved. Such concerns led Congress to preclude any funds in the Consolidated Appropriations Act, 2008 (H.R. 2764, P.L. 110-161), from being used to “commence operations of the National Applications Office … until the Secretary [of the Department of Homeland Security] certifies that these programs comply with all existing laws, including all applicable privacy and civil liberties standards, and that certification is reviewed by the Government Accountability Office.” (Section 525.) Similar language has been included in FY2009 homeland security appropriations bills.

This report provides background on the development of intelligence satellites and identifies the roles various agencies play in their management and use. Issues surrounding the current policy and proposed changes are discussed, including the findings of an Independent Study Group (ISG) with respect to the increased sharing of satellite intelligence data. There follows a discussion of legal considerations, including whether satellite reconnaissance might constitute a “search” within the meaning of the Fourth Amendment; an overview of statutory authorities, as well as restrictions that might apply; and a brief description of executive branch authorities and Department of Defense directives that might apply. The report concludes by suggesting policy issues Congress may consider as it deliberates the potential advantages and pitfalls that may be encountered in expanding the role of satellite intelligence for homeland security purposes.

The report will be updated as new information becomes available.

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Contents
Background

Current Policies
The Independent Study Group
National Applications Office (NAO)

Legal Considerations
Constitutional Rights
Searches and Non-searches Distinguished
Reasonable Warrantless Searches
Statutory Authorities and Restrictions
The National Security Act
The Posse Comitatus Act and Statutory Exceptions
Executive Branch Authorities
Executive Order 12333
DOD Directives

Conclusion

The second is U.S. Civilian Space Policy Priorities: Reflections 50 Years After Sputnik:

Summary
The “space age” began on October 4, 1957, when the Soviet Union (USSR) launched Sputnik, the world’s first artificial satellite. Some U.S. policymakers, concerned about the USSR’s ability to launch a satellite, thought Sputnik might be an indication that the United States was trailing behind the USSR in science and technology. The Cold War also led some U.S. policymakers to perceive the Sputnik launch as a possible precursor to nuclear attack. In response to this “Sputnik moment,” the U.S. government undertook several policy actions, including the establishment of the National Aeronautics and Space Administration (NASA) and the Defense Advanced Research Projects Agency (DARPA), enhancement of research funding, and reformation of science, technology, engineering and mathematics (STEM) education policy.

Following the “Sputnik moment,” a set of fundamental factors gave “importance, urgency, and inevitability to the advancement of space technology,” according to an Eisenhower presidential committee. These four factors include the compelling need to explore and discover; national defense; prestige and confidence in the U.S. scientific, technological, industrial, and military systems; and scientific observation and experimentation to add to our knowledge and understanding of the Earth, solar system, and universe. They are still part of current policy discussions and influence the nation’s civilian space policy priorities — both in terms of what actions NASA is authorized to undertake and the appropriations each activity within NASA receives.

Further, the United States faces a far different world today. No Sputnik moment, Cold War, or space race exists to help policymakers clarify the goals of the nation’s civilian space program. The Hubble telescope, Challenger and Columbia space shuttle disasters, and Mars exploration rovers frame the experience of current generations, in contrast to the Sputnik launch and the U.S. Moon landings. As a result, some experts have called for new 21st century space policy objectives and priorities to replace those developed 50 years ago. The authorization of NASA funding in the National Aeronautics and Space Act of 2005 (P.L. 109-55) extends through FY2008. Congress may decide to maintain or shift NASA’s priorities on such issues as national prestige, scientific knowledge, international relations, spinoff effects such as new job and market creation, and STEM education during the next reauthorization.

In the 110th Congress, several congressional resolutions honoring the 50th anniversary of Sputnik and the importance of the resulting agencies and activities to the United States have been introduced, with some passing the House or Senate. The House passed the National Aeronautics and Space Administration Authorization Act of 2008 (H.R. 6063) on June 18, 2008. In §2, Findings, the House approved a series of findings that reflects on NASA’s 50th anniversary, and identifies a number of priorities for NASA.

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Contents
Sputnik and America’s “Sputnik Moment”

Why Was Sputnik So Influential?

Why Is Sputnik Important to Today’s Policies?

What Are the Activities of Other Nations and the Commercial Sector in Space Exploration?

What Is the Nation’s Current Civilian Space Policy?

Why Invest in Space Exploration?

What Is the Public’s Attitude Toward Space Exploration?

What Are the Nation’s Priorities for Civilian Space Exploration and Its Implications for Future Space Policy?

Activities in the 110th Congress