Regulatory Review: National Security Space Assessment

by Gerry Oberst

The U.S. space industry should benefit from the conclusions of a recent panel set up to assess the U.S. national security space management and organizational structure. In the 2000 defense authorization bill, Congress ordered the creation of a commission to review this topic. The report was released on January 11, 2001, in Washington, DC. The chair of the panel, until his nomination for the position of Secretary of Defense, was Donald Rumsfeld. The release of the Rumsfeld report, just as the new administration was sworn in and the report’s former chairman was confirmed to a leading cabinet position within that administration, means that space-related issues should be on the forefront of U.S. national debate.

The charter of this commission was to assess how space activities support U.S. national security interests. Most of the report closely focuses on military and intelligence community issues. However, the report also contains important conclusions about the civil and commercial space industry.

At the outset, the commission’s unanimous conclusions reflect “its conviction that the United States has an urgent interest in promoting and protecting the peaceful use of space and in developing the technologies and operational capabilities that its objectives in space will require.” Thus, the commission recommends leadership by the president and senior officials to revise the national space policy and, among other goals, to “shape the domestic and international legal and regulatory environment for space in ways that ensure U.S. national security interests and enhance the competitiveness of the commercial sector and the effectiveness of the civil space sector.”

The report also recognizes that space-based technology is revolutionizing major aspects of commercial and social activity. These opportunities are obviously not limited to the United States–the commission acknowledges that commercial space activity is increasingly important to the global economy. Nevertheless, it says “the United States is more dependent on space than any other nation” and calls on policymakers to reduce vulnerability of U.S. space assets and assess threats.

“How the United States develops the potential of space for civil, commercial, defense and intelligence purposes,” according to the report, “will affect the nation’s security for decades to come.”

Developing that potential is not a matter solely for government agencies. The commission notes that government policy must give incentives to the commercial sector to pursue new activities in space and to develop new applications for goods and services derived from space systems.

Based on these assessments, the Rumsfeld report identifies ways for the U.S. government to advance the nation’s interests in space. Shaping the international legal and regulatory environment would be at the top of the list.

There is not great detail in the report on how these reforms would be accomplished or what the current problems are, but recognizing the overall situation at this high level is a welcome step. For instance, the commission refers to the increasing delay in coordinating the use of radio spectrum, which could support a more focused look at ITU reform. The report also calls for the U.S. government to use more expeditious licensing procedures for the commercial and civil sectors–a recommendation that the commercial industry will surely support.

The report has far more detailed discussion of U.S. military treatment of space activities. However, the very first recommendation on organizing space-related matters is as important to the commercial arena as it is to the government space sector. That recommendation is to “provide for national-level guidance that establishes space activity as a fundamental national interest of the United States.”

The report says the only way in which these issues will receive top national security priority “is through specific guidance and direction from the very highest government levels.” To obtain this level of attention, the commission point blank calls for the president to set forth national space policy, provide guidance and direct this effort.

This report was issued only a few months after Europe examined its space strategy. On November 16, 2000, the Council of the European Union issued a resolution reaffirming the strategic nature of space. After noting the importance of several commercial applications of space technology, including satellite data, radio navigation and information technology, the Council called on the European Commission and European Space Agency to set up a high level task force to develop further European space strategy and produce proposals for implementation.

A report is due from this task force by the end of 2001. The background communication from the European Commission, which led to the Council resolution, already calls for the European Union (EU) to establish the correct political and regulatory conditions for space activities.

Space activities and resources are critical to national policies and global enterprises. The timing is right for the highest-level policy makers to support these activities and, along the way, work on regulatory and legal barriers to greater use of these resources.

Gerry Oberst is a partner in the Brussels office of the Hogan & Hartson law firm. His email address is [email protected].