An unassuming loophole might be giving the U.S. government and its private contractors free rein to withhold evidence of unidentified craft traveling well above our skies — in outer space.

That's the argument made by former Capitol Hill policy advisor and attorney Dillon Guthrie, published this January in the Harvard National Security Journal, a publication run by Harvard Law School. Guthrie spent three years as a legislative assistant to Senator John Kerry covering national security issues and later worked directly for the Senate Foreign Relations Committee. He describes this UFO loophole as a kind of "definitional gap."

"Congress has redefined what were formerly called 'unidentified flying objects' [UFOs] to first 'unidentified aerial phenomena' [UAP in 2021], and then the following year to 'unidentified anomalous phenomena' [also UAP]," Guthrie told Mashable.

As Americans have been learning a lot lately in the age of Elon Musk's DOGE, the devil is in the details when it comes to the nation's large and complex federal bureaucracies. And an antiquated, mid-century sci-fi concept like "unidentified flying objects" packed a lot of assumptions into one short acronym. That's a reality lawmakers determined would hinder good faith efforts to seriously investigate more credible cases of UAP reported by U.S. military personnel in recent years.

Did the Navy pilots who witnessed the now notorious 2015 "GoFast" UFO, for example, really see something that was aerodynamically "flying"? Or was it just floating, like a balloon? Was it or any other strange airborne sighting truly a hard physical "object"? Or were these cases all something more amorphous and temporary, like the plasmified air of ball lightning?

As a term, UAP has offered a more broad and empirically conservative bucket for some of these still as-yet-unexplained events, categorizing them in a way that is not just more palatable to scientists and government officials; it has also made it harder for secretive U.S. defense and intelligence agencies to dodge the new annual reporting requirements now mandated by Congress, as part of the National Defense Authorization Act (NDAA). Or, that's the idea, in theory.

A careful study of the NDAA's most recent definition for UAP, as Guthrie noted in his new article, indicates that "data of any unidentified, spaceborne-only objects may be exempt."

"Under that current statutory definition, there are three kinds of unidentified anomalous phenomena," Guthrie told Mashable. "The first are airborne objects, or phenomena, that are not immediately identifiable. The second are submerged objects [or phenomena] that are not immediately identifiable — so, these would be unidentified objects in the 'sea domain,' or underwater."

"And then there's this third category of UAP, which are 'transmedium objects,'" he continued, "those that are observed to transition between, on the one hand, space and the atmosphere, and, on the other hand, between the atmosphere and bodies of water."

"Just under that strict reading of the definition," Guthrie said, "there is no spaceborne-only UAP."

NASA's UAP independent study team during a public meeting on May 31, 2023 at the space agency's headquarters.
Credit: NASA / Joel Kowsky

Any U.S. intelligence agency or branch of the military, in other words, that tracked a spacecraft circling (but respecting) Earth's border would be free to legally withhold that incredible hard data from Congress. And dozens of very recent cases like this may very well exist: Last November, the Defense Department's official UAP investigators with its All-domain Anomaly Resolution Office (AARO) disclosed that no less than 49 of last year's 757 cases in their annual unclassified report involved strange sightings of UAP in outer space.

AARO's 2024 report emphasized, however, that "none of the space domain reports originated from space-based sensors or assets; rather, all of these reports originated from military or commercial pilots or ground observers." But, Chris Mellon — formerly a minority staff director for the Senate Intelligence Committee and a deputy assistant secretary of Defense for Intelligence under Presidents Bill Clinton and George W. Bush — believes that this lack of sensor data is likely "a failure of reporting."

"Why is it that none of America's unparalleled space surveillance systems captured and reported what these pilots observed?" Mellon asked in an essay for the technology news website The Debrief this month.

"Did these systems actually fail to capture any data, or is this another case," the former Pentagon official continued, "in which the information is simply not being shared with AARO or Congress? If the pilots and ground observers were mistaken, cross referencing with these systems could help confirm that as well."

A Ground-Based Electro-Optical Deep Space Surveillance (GEODSS) System site located on Diego Garcia island in the British Indian Ocean Territory.
Credit: U.S. Space Force

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Mellon, a longtime advocate for transparency on UAP, recounted his own past government service experience supervising one of these systems, the Ground-based Electro-Optical Deep Space Surveillance (GEODSS) stations now managed by the U.S. Space Force. First established in the 1980s to effectively spy on spy satellites and other foreign orbital platforms, GEODSS can track objects as small as a basketball sailing 20,000 miles or more above Earth's surface.

"Many years ago, I asked a colleague visiting the Maui GEODSS site to inquire if the system had recorded anything 'unusual' in the night skies lately," Mellon recalled. "Sure enough, just a month or so earlier, the system recorded what appeared to be 4-5 bright objects traveling parallel to the horizon."

GEODSS personnel reportedly were baffled. These gleaming objects appeared to be at once too slow and consistent in their trajectory to be meteors but too fast, hot and high up in space to be any known aircraft.

"Site personnel had no idea what the objects were and, in those days, had no incentive to acknowledge or report the data," according to Mellon. "That incident occurred in the 1990s, when the GEODSS system was far less capable than it is today."

And, as Guthrie told Mashable, the full suite of America's space monitoring, missile defense and early warning platforms could easily be recording critical, perhaps world-changing evidence about UAP — which could reveal if it's another nation's advanced spacecraft, something mundane, or something truly unknown. Data from these systems — including the Space Fence, NORAD's Solid-State Phased Array Radars (SSPAR), the Space-Based Infrared Monitoring System (SBIRS), and others — could also be kept under wraps based on just this one technicality.

"If there are no requirements to report on spaceborne-only UAP," Guthrie said, "then there are no requirements by elements of the defense and intelligence communities to report on those objects using these especially sensitive space collection sensors."

"Our ballistic missile defense people were very concerned."

The now well-known 2004 USS Nimitz "Tic Tac" UFO incident, made famous by The New York Times in 2017 and testified to under oath in Congress, included the monitoring of similar objects in space, according to veteran Navy radar operator Kevin Day. Then a senior chief petty officer supervising radar efforts onboard the USS Princeton, a guided-missile cruiser with the Nimitz carrier strike group, Day told Mashable that crew tasked with looking out for ICBM warheads saw these unexplained tracks moving up at 80,000 feet.

"Our ballistic missile defense people were very concerned," Day told Mashable.

Greater engagement with these kinds of potential UAP risks does not appear to be on the way from some of the United States’ best unclassified collection tools — the worldwide network of astronomical observatories and satellites managed by NASA. Despite much fanfare around NASA’s announcement of a dedicated director of UAP research in 2023, the position has been left quietly vacant since September 2024, according to a recent statement from the space agency’s press office.

Guthrie chalks the crux of this problem up to "an absence of overarching political oversight."

"There have been so many agencies that have been alleged to have been or currently be involved in the UAP matter," he explained. "It's all too easy for any of these agencies to pass the buck."

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Guthrie hopes lawmakers will take-up the advice offered by former Pentagon official Luis Elizondo, who told Congress last November that it should "create a single point-of-contact responsible for a whole-of-government approach to the UAP issue."

"Currently, the White House, CIA, NASA, the Pentagon, Department of Energy, and others play a role, but no one seems to be in charge," Elizondo added, "leading to unchecked power and corruption."

Beyond redefining the strict legal definition of what UAP means, or even creating a new acronym that would bring "clarity to this issue," Guthrie argues that this more centralized, whole-of-government approach could also help close-up these kinds of loopholes.

"Breaking down those stovepipes," as Guthrie put it, "and along with those stovepipes the ability of a particular agency to just say, 'Oh, we don't feel the need to further act on this matter.'"

Vicky