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Comment by ferdo | Hacker News Reader

It's safe to say that "bugging our allies" probably isn't in the NSA mission statement.

Off nsa.gov: "The NSA/CSS core missions are to protect U.S. national security systems and to produce foreign signals intelligence information."

So yes, actually, it is. On the front page. Explicitly.

The US is bound by treaty in this respect. That means that all arms of the US government including the NSA are bound in the same way. You don't get to pick and choose which parts of your government are or are not bound by certain treaties. Either they all are, or none are.

That's why treaties trump national law in the first place.

In the U.S. treaties do not trump national law. In fact, in the U.S. treaties have no legal effect at all unless they are either 1) implemented by Congressional legislation; or 2) written so it is clear that the intent is for the treaties to be "self-executing" (see Medellin v. Texas, http://en.wikipedia.org/wiki/Medell%C3%ADn_v._Texas). And even if a treaty is effective, it has the status of ordinary law. With ordinary law, a subsequent act of Congress that is inconsistent with a prior act is given precedence over that prior act. So if the U.S. passes a treaty saying it won't do X, then Congress passes a law allowing the President to do X, then the law, being latest in time, overrides the treaty.

American courts are fairly hostile towards treaties (something which I think is under the surface of Medellin). Basically treaties are un-democratic. They are written by unelected diplomats and are necessarily the product of foreign influence. It doesn't help that one of the motivating factors for the treaty provisions of the U.S. Constitution was the status of the U.S. as a precarious winner of the Revolutionary War. One of the conditions of the Treaty of Paris was that debts on both sides would be recognize. Of course, in most cases Americans were the debtors. The British were very concerned about states passing laws to abolish debts owed by their citizens to the British. Hence the provision elevating treaties of the U.S. above state law.

It's not all that clearcut as you make it out to be:

http://en.wikipedia.org/wiki/Bricker_Amendment#Legal_backgro...

The key here is that the 'last bit counts'.

I assume you're talking about Missouri v. Holland? Subsequent to that case, the Court decided Reid v. Covert ("a landmark United States Supreme Court case in which the Court ruled that the Constitution supersedes international treaties ratified by the United States Senate"); and Medellin v. Texas ("a United States Supreme Court decision that held that even if an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is 'self-executing'").

Missouri v. Holland, nor any subsequent case of which I'm aware, did not disturb the holding of the Cherokee Tobacco Case ("The Supreme Court decided against the men, stating that a law of Congress can supersede the provisions of a treaty."). See: http://law.justia.com/constitution/us/article-2/18-treaties-... ("Treaties Versus Prior Acts of Congress.—The cases are numerous in which the Court has enforced statutory provisions which were recognized by it as superseding prior treaty engagements.")

Another thing that led to the status of treaties in the U.S. is that the Court spent much of the 1800's looking for ways around the various treaties the U.S. entered into with the Indian tribes.

Treaties are dangerous and anti-democratic. They put legislative powers in the hands of diplomats. They represent the words of a man binding a nation of people. Europe is learning this the hard way, with ACTA, etc.

The idea is that you elect a representative and that that representative is then able to bind you.

If all you have is the internal laws of countries and no international framework to work within then you are actively advocating for isolationism and war.

Just so you realize where that reasoning leads to.

Spying on allies is a time-treasured practice. Countries have no allies, just frenemies.

If it's not part of the mission statement, it's off mission. I don't consent to rogue intelligence agencies at the heart of my government.

It's not "rogue" at all. The NSA's explicit purpose is to do intelligence gathering and analysis on foreign threats. That's its core competency - data mining. If you look at the mission statement, it says its goal is to do intelligence gathering.

It would be rogue if it decided to, say, give crucial information to a foreign country at the expense of the United States.

The NSA is spying on American citizens. It's off mission and thus rogue.

Hm. I don't know. The vibe that I get from talking to the people around me is that spying happens among enemies and prospective enemies. And being downgraded into the prospective enemies category comes with a bit of emotional trauma for us Europeans.

But what does that make us? Are we now the bitter EX of the US?

No your governments are getting the data as well.

Spying happens among friends at least as often as among enemies and prospective enemies. Maybe even more so, because it is commonly used for back-channel diplomacy.

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