Hearing of the House Committee on Homeland Security

Statement

HEARING OF THE HOUSE COMMITTEE ON HOMELAND SECURITY
SUBJECT: TURNING SPY SATELLITES ON THE HOMELAND: THE PRIVACY AND CIVIL LIBERTIES IMPLICATIONS OF THE NATIONAL APPLICATIONS OFFICE

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REP. AL GREEN (D-TX): Thank you, Mr. Chairman. I thank you and the ranking member for your opening comments; I thought they were very insightful.

Also like to thank these five men for the service that they're rendering to their country.

Friends, if I may, I'd like to share with you briefly this thought. This country was founded in part because of the unfettered access that the king's men had to our property, to our papers, and it was that unfettered access that caused people to venture across the ocean and come here so that they could establish a system that would give them the kind of privacy that we enjoy to this day.

The Founding Fathers were really brilliant men -- and women, of course; there were some women involved -- who understood the need and necessity for a Fourth Amendment.

The Supreme Court has held, in Kyllo versus the U.S., that thermal imagery is subject to the Fourth Amendment. The Fourth Amendment really is kind of the cornerstone, if you will, of the home being the castle.

If we allow the unfettered access by way of satellite technology, which is uncharted space for us -- we really don't know exactly where this will end -- we know where we are and we allow it based upon custom and tradition, meaning we've always done what we're doing -- we allow it based upon the notion that we have in-house people who will review this and our in-house people will tell us whether we're making mistakes or not, I think we're making a mistake.

It's not a question of whether it's been done before; the question is whether what was done before was constitutional. Question is whether what will be done is constitutional.

So we are at a point where, in my opinion, we have to ask ourselves do we have the kinds of checks and balances that the Constitution envisions -- not the kinds of checks and balances that the executive branch envisions?

We just found that Dr. King's wife, Mrs. King, was being surveilled unconstitutionally by the executive branch. We've discovered that a congressperson had his papers taken from his office unconstitutionally.

The question is, is this constitutional and are there checks and balances as envisioned by the executive branch? To have the NGA under the executive branch -- and let me pause for a second and get this on the record -- is the NGA under the executive branch? Does everybody agree that it is?

MR. ALLEN: Yes.

REP. GREEN: All right. If the NGA is under the executive branch, it is not comparable even to the FISA courts. It is, at best, an executive remedy. The Constitution requires a broader remedy that envisions the judiciary being a part of something as pervasive as what we are capable of doing with these satellites.

My question is, why don't we have the NGA or something comparable to the NGA under another branch of government? This is kind of the clearing house, do you agree?

MR. ALLEN: I believe, sir, you're talking about the National Applications Office rather than the NGA.

REP. GREEN: No, the National Applications Office, as I understand it, it will go to the NGA and the NGA will review and approve the collections of information. Is this not true?

MR. ALLEN: That's not exactly the way it'll work, because the National Applications Office, working with both civil agencies, science agencies, as well as the Homeland Security and potentially law enforcement --

REP. GREEN: If I may --

MR. ALLEN: They will give --

REP. GREEN: If I may, sir, please, let me abridge your comments. Will not the National Applications Office receive the request?

MR. ALLEN: They will receive the requests, and will --

REP. GREEN: And will not the national -- if I may, please --

MR. ALLEN: -- they will -- it will prioritize.

REP. GREEN: If I may, please. Will not the National Applications Office then take the request to the NGA?

MR. ALLEN: After explicit, significant legal review to make sure, absolutely.

REP. GREEN: After explicit -- yes, but they take it to the NGA. And will not the NGA then give a yea or nay?

MR. ALLEN: Another review, yes.

REP. GREEN: Yes, a yea or nay.

MR. ALLEN: They -- if there's a difference, it'll be resolved between the two organizations.

REP. GREEN: A rose by any name -- that which we call a rose by any name still smells just as sweet. Call it NGA, call it National Applications -- either office is under the auspices of the executive, true?

MR. ALLEN: Both offices will fall under the executive branch.

REP. GREEN: Okay, that creates a great amount of consternation in the minds of constitutional scholars.

I believe it does. The question is, why not have NGA -- or if we want to talk about the National Applications Office, why not have this under the auspices of the judiciary, something comparable to FISA?

Probably I shouldn't say comparable to FISA, but something comparable to what FISA was envisioned to be. Why not have it under the judiciary? The president appoints these FISA judges. Why can't we have some other entity outside of the executive to perform these as a clearing house?

MR. ALLEN: I believe that no other element can really understand the customers for civil --

REP. GREEN: Oh, no. Wait, sir, listen now -- listen. I beg to differ with you.

MR. ALLEN: -- and the priorities.

REP. GREEN: I beg to differ with you. If you're saying that there are not other people who have the intelligence and the intellect to understand the Constitution of the United States of America, then we need to do away with the Supreme Court.

MR. ALLEN: That's not what I said; you didn't let me answer.

REP. GREEN: All right, then let me give you more time.

MR. ALLEN: What it does is there are limits of physics. What we have is an application for civil and homeland security purposes, and the National Applications Office is going to bring into order and focus already-existing processes. It will have a broader customer set, as Congresswoman Harman noted, but it is -- it'll all be done in accordance with the Constitution, in accordance with the laws, and there are great checks and balances here.

REP. GREEN: If I may, sir, it will be -- if I may please, sir, it will be done -- I'm sorry, I have to intercede because I have little time.

It will be done according to the executive branch's interpretation, and that, many times, will conflict with the Constitution, which is why you have another branch to give another opinion that can supersede the executive branch's interpretation.

And that is why -- listen, I'm imploring -- I beseech you, I beg that you please give consideration to the notion that we need a third branch of government, or another branch of government involved.

Thank you, Mr. Chairman; I yield back the balance of my time.

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REP. CHRISTOPHER P. CARNEY (D-PA): Thank you, Mr. Chairman.

I do have a number of questions, but first I will yield 30 seconds to my colleague from Texas, Mr. Green.

REP. GREEN: Thank you, Mr. Chairman, and thank you for yielding.

Two things: One, the Constitution, the Fourth Amendment contemplates privacy in the home, but it really concerns privacy and the home is not the only place where the Fourth Amendment contemplates privacy.

Second point: If you have an issue that you deem to be important enough to take to a court to receive a proper warrant, what court would you take it to?

MR. TEUFEL: I assume, sir, that it would be taken by the prosecuting attorney in whatever jurisdiction in which they are seeking to use that information. They would take it to federal court.

REP. GREEN: I asked this question, Mr. Chairman, because it may be necessary for us to -- Mr. Chairman -- to deal with jurisdictional questions in terms of the judiciary as it relates to the issue of what court they would eventually go to, assuming they had a legitimate question that they wanted to bring up.

Finally, I would make this comment: I respect you, sir, and have great appreciation for what you're saying. But J. Edgar Hoover, who was the head of the FBI -- a great patriot -- spied on Dr. King. The FBI spied on Mrs. King after his death. It was all unlawful. So we cannot assume that the executive is going to be judicious when it comes to the Fourth Amendment.

MR. TEUFEL: You're right, sir, and so let me point out --

REP. GREEN: I yield back.

MR. TEUFEL: -- that under the 9/11 Commission report bill --

REP. THOMPSON: The gentleman has yielded back his time. It did not require an answer.

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