May 16, 2008
A recently released letter from Rep. Jane Harman (D-CA) has raised a concern by the Committee on Homeland Security regarding the National Applications Office (NAO) and their plans to use military satellites to spy on the American people.
Specifically, we believe the NAO raises major issues under the Posse Comitatus Act (18 U.S.C. § 1385) as it involves the use of military satellites for surveillance of American citizens inside the United States for law enforcement and other purposes. Having been burned before on the Terrorist Surveillance Program and knowing of this Administration’s disdain for obeying the laws Congress passes, we need to be extraordinarily careful.
By the Department’s own admission, existing authorities are adequate to permit emergency use of military satellites in extreme weather situations or to protect large outdoor mass gatherings like the Super Bowl or World Series. Thus, the question becomes what unmet law enforcement purposes or needs would the creation of the NAO serve. We have asked the Department this question repeatedly and they have been unable to respond.
We are left to conclude that the only reason to stand up a new office would be to gather domestic intelligence outside the rigorous protections of the law – and, ultimately, to share this intelligence with local law enforcement outside of constitutional parameters. For the NAO to proceed, there needs to be a tight and complete legal framework in place. To date, no legal framework has been created."
DHS replied to counter Harman’s letter.
"The purpose of the NAO is not to expand existing legal authorities,” DHS spokeswoman Laura Keehner said. “It is to allow the government to better and more efficiently prioritize the use of scarce resources in support of major disasters, homeland security efforts and, in the future, law enforcement. We have said repeatedly that we will brief Congress before moving to support law enforcement.” Keehner said the letter also errs in its application of the Posse Comitatus Act. “For one thing, these satellites are not exclusively for military use,” she said. “But in any event, the [act] and other laws permit indirect military support to law enforcement, particularly through equipment.”
Concern in Congress over violations of Posse Comitatus have been on the rise ever since the Homeland Security Act was passed in 2002, though many of the Congressmen who are now criticizing the Bush administration for implementing these police state measures are the same ones who voted for the DHS act.
While certain laws under U.S. Code do allow for civilian use of and exchange of military arms and supplies, the specific use of the military and its forces in domestic civilian law enforcement is prohibited under Posse Comitatus.
A 2004 panel report put out by the Center for American Progress, which included Paul Mchale (Asst. Sec of Defense) and Michael O’Hanlon from the Brookings Institute, featured a frank discussion of our military reserves and how the Army, specifically the National Guard, would be used in the 21st century.
"Now, because of transnational terrorism we have to think about threats that have not really existed on our own soil for a long time, but the legal authority to defend the United States using military force – not to engage in law enforcement activities but to physically defeat foreign threats on our own soil – is a matter of recurring constitutional authority. And so that’s really the hierarchy that we see. First and foremost, the physical protection of United States citizens within our own country is a civilian law enforcement function. If that capability cannot be executed by law enforcement, the National Guard, consistent with Posse Comitatus, in state status or Title 32, may engage in law enforcement related activities. But ultimately, if the nature of the threat is so severe that a military defense on the ground is required, then for a military purpose, not law enforcement, those missions may be executed."
Security strategists such as Thomas Barnett have even spoken openly about destroying Posse Comitatus in regards to changing fundamentals of the U.S. military and how it should and should not operate in the coming years. Apparently, Posse Comitatus is but a shallow barrier in the eyes of our military/industrial complex, something that can and will be pushed aside so they can fight their little wars against groups that are largely funded, fueled, or flamed by our own government. The fact that Congress is finally raising eyebrows over legal and constitutional violations by the defense sector is refreshing, but the question is whether it’s too little, too late.
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