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The NSA Phone Call Database: The European Perspective

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20 Responses

  1. nick says:

    Lovely first post for a guest blogger :)

  2. Comments:

    “..the President’s new constitutional powers in fighting terrorism, post-September 11. Congress, the courts, and the public might very well accept that the NSA program is legal, based on the President’s inherent authority as commander-in-chief.”

    New??

    Deputy AG Jamie Gorelick: “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”

    …when she writes “inherent”, my first thought isn’t “well, then it must be new”.

    “But another independent, government body….a special, bi-partisan, parliamentary commission known as the G-10 Commission.”

    actually, I think there is a special 9(?) member Parlimentary Committee that selects 4 people to make-up the Commission. The Parliamentary Committee has to represent the makeup of the Bundestag (which I think has at least 4 parties within). Not sure if the Commission itself has to be reflective of the parties…I wouldn’t call such oversight “independent” since it clearly is subject to the whims of the prevailing political winds in place in the Bundestag (and of which there is no judicial review)

    Finally, how do you think the UK’s purported participation in Echelon fit in with current EU sensibilities?

  3. Francesca says:

    New and inherent sounds like an oxymoron, but think of all the President’s powers under Art. II to direct the federal bureaucracy. Those powers were new in the 1930s (we didn’t have much of a bureaucracy beforehand) even though they were based on the text of 1789.

    Why can’t review by a separate, albeit elected, body be independent? If the Senate Intelligence committee had the powers of the G10 Committee, even though it is majority Republican, I’d still call it independent review.

    Good point on Echelon. The European Parliament has conducted a number of investigations into Echelon and has condemned it, but hasn’t gotten very far. The UK has been held to be in breach of Art. 8, ECHR a number of times–maybe it will also be on Echelon, some time in the future.

  4. This post was prescient, of course, because just a day or two later the European Court of Justice voided the arrangement under which airlines flying from Europe to the US shared passenger data with US counter-terrorism authorities. (Though the decision was not based on privacy law, it was privacy concerns that animated the dispute.) I have more in this blog post: http://blogs.law.harvard.edu/infolaw/

    This disjuncture between European and American perspectives on privacy, coupled with increasing European suspicion of US counter-terrorism policy, is going to lead to further tension over data sharing.

  5. Swiss Connection says:

    Here the BBC Article the European Court of Justice Ruling pertaining to Airline passenger data:

    http://news.bbc.co.uk/2/hi/europe/5028918.stm

  6. Thomas says:

    Add to this the fact that the U.S. no longer has a functioning republic, but rather a Potemkin republic of the sort that was seen in the former Eastern Bloc, and you have more reasons for the divergence and for European non-cooperation with the U.S. in the future.

    http://www.rollingstone.com/news/story/10432334/was_the_2004_election_stolen

  7. Tom Richards says:

    On the subject of that Rolling Stone article, please note that it has been very critically discussed on Salon and Mother Jones, among many others. I was steamingly angry when I read it at first, but a lot of its claims don’t stand up.

    The truth is bad enough, and there’s no need for RFK Jr. to go around embroidering it or creating conspiracy theories that require all Republicans to be Machiavelli, and all Democrats to be stupid.

    http://www.salon.com/news/feature/2006/06/03/kennedy/index_np.html

    http://www.motherjones.com/arts/books/2005/11/recounting_ohio.html

  8. Jojo says:

    Don’t worry about the lack of privacy, there is nothing you can do about it.

    aW5zdHJ1Y3Rpb246a2lsbCB0aGUgYnVzaA==

  9. Thomas says:

    WASHINGTON – Following a report that the U.S. agency in charge of a domestic spying program is building a database of every phone call made in the country, President Bush on Thursday told the nation from the White House that all anti-terrorism efforts are within the law.

    Facing new concerns in Congress, President Bush referred to the report but did not confirm or deny it and instead sought to assure Americans that their privacy is being “fiercely protected.”

    “We are not mining or trolling through the personal lives of innocent Americans,” Bush said before leaving for a commencement address at Mississippi Gulf Coast Community College in Biloxi. “Our efforts are focused on links to al-Qaida and their known affiliates.”

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