POLICE SEARCHES IN SPACE

Military Satellites May Focus on U.S. Homes in the Name of Homeland Security.

The United States has a strong and well-founded aversion to the use
of military force within its own borders. There have been exceptions
- -- President Eisenhower's deployment of the 101st Airborne to enforce
desegregation in Little Rock, Ark., was perhaps the most vivid -- but
for the most part the nation has prospered by the separation of its
police and military, which has helped protect the public from
suppression and the military from distraction.

The underlying principle is enshrined in the Posse Comitatus Act,
enacted soon after the Civil War and intended to bar the Army from
acting as a police force -- originally, to bar it from enforcing
order in the Southern states. Although written with the Army
specifically in mind, it has since been applied to the other branches
of the military and has helped to deter many attempts, well-meaning
and otherwise, to press the military into police work, for instance
in the "war on drugs."

But the "war on terror," which reaches inside American borders as
well as outside, inevitably has caused some to ask whether the
military should fight it at home too. Specifically, the Department of
Homeland Security, without so much as a phone call to Congress, has
developed a program to draw on military surveillance satellites to
help local police. Under the program as envisioned, police or
sheriff's departments could request targets -- a suspected drug
dealer's house, say. A National Applications Office in the Homeland
Security Department would consider the requests and, on approval,
attempt to deliver the information to local law enforcement, which it
refers to as its "customers."

That's tempting. What's the harm in printing out high-resolution
satellite images -- which the government already is producing -- and
sharing them with officials who might use them to thwart criminals?
In most cases, they would simply be photographs capturing activity
outdoors, where there is little reasonable expectation of privacy.
There could, however, be exceptions -- critics warn of infrared
sensors, advanced radar, acoustic scans and devices to pinpoint
various structural materials.

Such applications help to highlight at least three immediate reasons
to greet this idea with skepticism. First, it turns the military away
from its essential mission -- fighting America's enemies abroad --
and toward an area where it doesn't have much expertise, namely
spying on those it's charged to defend. Second, redirecting spy
cameras and sensors onto American rooftops offers up perilous
possibilities in mission and technology creep. And third, this
administration long ago lost the public's trust on domestic surveillance.

Philosophically, refocusing satellites on the home front represents a
new dimension in warrantless surveillance. Cameras said to be able to
make out objects that can fit in one's hand would be trained on
backyards; at some angles, through windows; and with some
technologies, through walls and roofs, probing for heat or other
indicators of life or malfeasance. The government's surveillance
capabilities would be radically expanded. All of that should alarm
anyone who values privacy in the home or who questions the virtue of
a snooping government.

Practically, the ramifications cut another way. Imagine the criminal
defendant brought to court because a military satellite spotted a
marijuana patch in his backyard. He would be entitled to challenge
the imagery that supplied evidence against him. Is the Pentagon ready
to disclose the specs on its super-secret devices in order to help
county sheriffs round up pot farmers?

The sanctity of one's home is not an ideological principle; it is an
American one. Indeed, it was no less a conservative than Justice
Antonin Scalia who wrote for the Supreme Court in 2001 in ruling that
a government thermal analysis of a home was an unlawful "search." His
reasoning deserves repeating as the administration and Congress
consider the use of satellites to crimp still further the remaining
privacy that Americans enjoy. In Scalia's words: "Where, as here, the
government uses a device that is not in general public use, to
explore details of the home that would previously have been
unknowable without physical intrusion, the surveillance is a 'search'
and is presumptively unreasonable without a warrant."