Author Archive for
Chris Borgen

Any Questions: The International Criminal Court and the Special Tribunal for Lebanon

by Chris Borgen

[Travel and other expenses related to my participation in the “100 Years Peace Palace” program provided by the Government of the Netherlands and Radio Netherlands Worldwide.]

Finishing up my week of meetings and interviews related to international legal institutions at the Peace Palace and the Hague more generally, I will be meeting tomorrow with President Sang-Hyun Song of the International Criminal Court and with Marten Youssef, spokesperson for the Special Tribunal for Lebanon.

As before, I invite readers to submit any questions.

I will have posts in the coming days recapping meetings at the ICJ, the Peace Palace centennial, and other Hague-related topics, as well as these upcoming meetings at the ICC and STL.

Peace Palace 100: Getting Reintroduced to the Permanent Court of Arbitration

by Chris Borgen

[Travel and other expenses related to my participation in the “100 Years Peace Palace” program provided by the Government of the Netherlands and Radio Netherlands Worldwide.]

It is a bit surreal to be attending programs commemorating 100 years of the Peace Palace on a day when the news is filled with the possibility of US military intervention in Syria. Kevin and Julian have been parsing through the Syria issues so, for now, I’ll focus on the Hague meetings I have been attending.

For this post, a few snapshots from conversations today with Secretary General Hugo Hans Siblesz and Senior Counsel Sarah Grimmer of the Permanent Court of Arbitration.

The main take-away from the PCA meetings is how rapidly its case-load has increased and changed  in the last ten years. Founded in the 1899 Convention on the Peaceful Settlement of Disputes (“With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organize a Permanent Court of Arbitration…”), the PCA was largely moribund for about 100 years, overtaken by the Permanent Court of International Justice and then the International Court of Justice in state-to-state dispute resolution.

However, according to its website, the PCA:

has developed into a modern, multi-faceted arbitral institution that is now perfectly situated at the juncture between public and private international law to meet the rapidly evolving dispute resolution needs of the international community. Today the PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties.

The PCA actually now has about eighty pending cases, fifty-four of which are investor-state arbitrations. Only eight cases are state-to-state disputes. While the PCA still has boundary cases like the Abyei arbitration or the Ethiopia-Eritrea boundary commission and other state-to-state cases such as the Ethiopia-Eritrea claims commission, the PCA has transformed into being primarily an investor-state dispute resolution mechanism.

Blame it on the BITs. The proliferation of bilateral investment treaties in recent decades caused an increased number of cases, which effected both ICSID and the PCA. While the PCA has a cooperation agreement with ICSID, most PCA investor-state disputes are under UNCITRAL rules and are enforceable under the New York Convention, rather than the ICSID Convention. The differences between ICSID versus UNCITRAL procedural rules, as well as any differences between the New York Convention and  the ICSID Convention (such as in the enforcement of awards or provisions for challenging arbitrators) may drive some arbitrations into the PCA as opposed to ICSID. Moreover, while ICSID publishes a list of all of its investor-state cases, the PCA does not. (This may, of course, make the PCA more attractive to parties who want to settle their disputes in private.)

Last August, Luke Eric Peterson observed in the Kluwer Arbitration Blog that in many cases the decision to go to ICSID or the PCA may be determined due a combination of contract clauses that are decades old.

Nonetheless, I think that the question of potential regulatory competition between ICSID and the PCA will be an interesting issue to track in the coming years.

 

Blogging from The Hague: The Peace Palace Centennial

by Chris Borgen

[Travel and other expenses related to my participation in the “100 Years Peace Palace” program provided by the Government of the Netherlands and Radio Netherlands Worldwide]

August 28th will mark the 100th anniversary of the opening of the Peace Palace at The Hague. In commemoration of this, the Government of the Netherlands and Radio Netherlands Worldwide have brought a group of ten bloggers and online journalists from around the world to The Hague for a series of programs, meetings, and interviews surrounding the festivities. I am here on behalf of Opinio Juris.

Over the course of the next few days, I will post on the various meetings and events in which I will be participating. For those of you who like to use Twitter, there will also be tweets from various participants with the hashtag #peace100.

Tuesday we will begin in earnest with meetings with International Court of Justice President Peter Tomka, Secretary General of the Permanent Court of Arbitration Hugo Hans Siblesz, and various officials from the Netherlands Ministry of Foreign Affairs.

The day will conclude with an event focusing on women’s rights, peace, and international law that will include presentations by 2011 Nobel Peace Prize Laureate Leymah Gbowee, currently the Special Gender Advisor to the International Criminal Court, Brigid Inder, the Executive Director of the Women’s Initiative for Gender Justice, and Stephen Rapp, the U.S. Ambassador for War Crimes Issues.

I invite Opinio Juris readers to post any questions you would like posed to Judge Tomka, Hugo Hans Siblesz, Leymah Gbowee, Brigid Inder, or Stephen Rapp. I will blog on these events in the coming days and if I ask any of the reader questions, I will post the answers.

Stay tuned…

David Kaye on “Stealth Multilateralism”

by Chris Borgen

The new issue of Foreign Affairs has an article by David Kaye, entitled “Stealth Multilateralism.” He begins the piece by describing the point of view of the “sovereigntists,” (often conservative Republicans) who view treaty-making as a threat to national sovereignty.  (See, for example,  this recent post by Peter on sovereigntist views.)

After arguing that treaty-making is actually an expression of sovereignty, Kaye closes the introductory section in this way:

Yet rejection is just the beginning of the story. Over the past two decades, the executive branch has developed and expanded a variety of lower-profile methods for asserting the country’s interests abroad in ways that do not require Senate involvement. The Clinton, Bush, and Obama administrations figured out that on some issues, they could circumvent the Senate entirely, and they developed new ways to participate in international forums, sometimes even exercising leadership in institutions that the Senate had refused to allow the United States to join.

Call it “stealth multilateralism.” Using a patchwork of political and legal strategies, the United States has learned how to respond to the global problems that are pulling it into the world even as Senate Republicans are trying to hold it back. As sound and effective as such measures can be, however, stealth multilateralism has its limits, since treaties establish more stable, transparent, and predictable relationships than political commitments. Both the United States and the rest of the world would benefit from a return to responsible multilateral engagement in which treaties regain their central role.

What follows for the rest of the article is a careful examination of the foreign policy costs of near-wholesale treaty rejection, the “subtle form of rejection” in the U.S. practice of treaty reservations, and, how Presidents have found work-arounds, such as non-binding agreements, to remain engaged in a policy area despite the Senate’s refusal to ratify. Crucially, Kaye explains the limits of those tactics and why the American public loses when we do not have a real discussion of the pros and cons of a particular treaty.

Kaye’s essay is a great primer on the interplay of U.S. domestic politics with international treaty-making. Check it out.

New Study on Climate Change and a Possible Surge in Conflicts

by Chris Borgen

Following-up on Kevin’s post that illustrated the increasing temperature anomalies of the world’s climate, I want to point out a recent study pointing to evidence of a link between increasing global temperatures and a rise in violent crime and larger-scale conflicts, such as wars. Smithsonian.com reports:

Now, in the most comprehensive analysis of the work on climate change and armed  conflict to date, a team from UC Berkeley and elsewhere has found that  these climate trends are indeed likely to significantly increase the incidence  of armed conflict overall. Their paper, published[on August 1st] in Science, examined  60 studies to aggregate sets of data on events spanning 8000 B.C.E. to the  present that examined climate variables and incidences of violence in all major  regions of the globe.

But, the part of the study that has been getting the most attention isn’t the historical analysis, but the forward-looking projections .

Extrapolating to the future, these rates mean that if the entire planet went  through an average of 3.6°F of warming by 2050—an optimistic limit set at the 2009 Copenhagen conference—we’d see personal  crime rise by 16 percent and intergroup conflicts surge by 50 percent. The  distribution of violence wouldn’t be equal, either, as climate models indicate  that some areas will be hit with warming periods that fall outside two, three or  even four standard deviations of the norm (and thus experience more conflict)…

To get an idea of which areas may face the most violence, see this map of climate deviations from the norm. There are various caveats, but the researchers believe:

that they conducted the most rigorous analysis possible. The fact that the  climate-violence relationship was consistently found among a wide range of time  periods, cultures and regions, they argue, indicates that there is a substantial  link between the two.

And, of course, keep in mind that increasing climate may be linked to increasing societal and inter-communal violence because rising temperatures can also adversely affect agricultural production, spawn stronger storms that destroy communities and result in environmental refugees, and so on.

For a recent examination of the legal and policy issues related to climate change, see Andrew Guzman’s new book Overheated: The Human Cost of Climate Change. Also, see this video of Guzman speaking on climate change.  See, also, Hari Osofsky’s and Roger Alford’s posts discussing Andrew’s book.

NewSpace 2013 Panel on Legal Issues Concerning the Commercialization of Space

by Chris Borgen

The Space Frontier Foundation’s NewSpace 2013 conference is currently underway in Silicon Valley. The program description explains that:

The three day event will focus on the current, near term, and future potential and challenges of the emerging commercial space industry. People from throughout the space, advocacy and technology industries to those in startups, government and media bring their ideas for opening the high frontier making this conference a hotbed of innovation and partnership.

As we have discussed here before, the commercialization of space as well as new governmental initiatives present challenges to the existing framework of space law. The NewSpace conference will have a panel on space law issues and commercialization on Saturday at 2:00 pm (Pacific Daylight Time):

Sinking the Iceberg: The Current Legal Landscape of Utilization Rights in Space (And How We Can Change It)
While property rights here on Earth have been established for millennia, the legal landscape of space outside of Earth orbit is relatively undefined. The Outer Space Treaty, widely-ratified in 1967, explicitly forbids any government from appropriating the moon or other celestial bodies, which some claim prevents anyone using resources in space from doing so without sharing it with the entire world. However, very ambitious companies have already declared their intentions to use the resources of space for private gain, and the time has come to re-examine the laws of outer space utilization and property rights from a modern perspective. In this panel, we bring together some of the experts on how we could create a practical legal regime, and develop the technologies needed, to encourage and promote the utilization of resources beyond low-Earth orbit.

The whole conference, including the space law panel, will be videostreamed on the conference homepage.

For more on international law and the commercial space industry, see the Opinio Juris / Melbourne Journal of International Law discussion of Steven Freeland’s MJIL article “Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?” (1, 2, 3) and don’t forget the American Society of International Law’s new Space Law Interest Group.

American Journal of International Law Symposium Starts Today

by Chris Borgen

We are pleased to host the American Journal of International Law on-line symposium on the lead articles of the new issue of the AJIL, which were written by Leila Sadat (Washington University) and Eyal Benvenisti (Tel Aviv University).

Today and tomorrow there will be a discussion of Leila Sadat‘s article, Crimes Against Humanity in the Modern Age. The précis of her piece explains that:

This article analyzes the centrality of crimes against humanity prosecutions to the International Criminal Court’s fulfillment of its mandate to prevent and punish atrocities committed in strife-torn regions. Ad hoc international criminal tribunals established in several states will complete their work soon, leaving the Court as the sole functioning international criminal authority. But the Court’s jurisprudence since its 1998 founding raises serious concerns about its interpretation of, and willingness to fully utilize, the powers conferred by its jurisdictional statute.

Darryl Robinson (Queen’s University) and Elies van Sliedregt (VU University Amsterdam) will participate in the discussion of Leila’s article.

On July 24th and 25th the discussion will move to Eyal Benvenisti’s article, Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders. The AJIL summary for that article states:

The concept of sovereignty crystallized in an era when distances were large, and self-sufficiency the aspiration. This view of sovereignty is no longer sustainable and yields inequitable, undemocratic consequences. This article argues that in a densely populated and deeply integrated world, sovereignty should be understood as also involving a trusteeship toward humanity at large. Sovereigns should be required to take into account other-regarding considerations when forming national policies that may have effects beyond their national jurisdictions, even absent specific treaty obligations.

Armin von Bogdandy and Dana Schmalz (Max Planck Institute for Comparative Public Law and International Law), Jan Klabbers (University of Helsinki), and Christopher McCrudden (Queen’s University Belfast) will comment on Eyal’s article.

As always, readers are welcome and encouraged to participate in the discussion via the comments section for each post.

We are very happy to be working with the editors of the American Journal of International Law on this symposium and look forward to the conversation.

Political Science Fiction

by Chris Borgen

In his book Grand Strategies: Literature, Statecraft, and World Order, former diplomat and Yale professor Charles Hill argues that

The great matters of high politics, statecraft, and grand strategy are essential to the human condition and so necessarily are within the purview of great literature. Tolstoy’s War and Peace treats them directly. What has not been much recognized is that many literary works read and praised for insights on personal feelings, such as Jane Austen’s Emma, possess a dimension wholly apt for statecraft—in Emma’s case, the gathering and misanalysis of intelligence. (p.4)

Hill’s book is a treatment of the lessons in statecraft that one can glean from great literature. (However, note this criticism of Hill and his book.) If it “has not been much recognized” that those books can have lessons in statecraft, I’d like to propose that it has been even less recognized that there are some great insights to be learned from fantastic fiction. Science fiction, fantasy, speculative fiction, books described in this way are rarely described as “great literature.” And when they are, it is sometimes as if they are great despite the fact that they are fantastic. I will set that literary debate aside. Instead I want to focus squarely on what we as international lawyers and foreign policy wonks can glean from sci-fi.

Hill argues that:

1)Statecraft is protean, incessantly assuming different forms and presenting new predicaments beyond the ken of established methodologies; 2) some of the greatest classical texts—the Iliad, the Aeneid—deal with such challenges through their unboundedness, intertwining what would be later labeled as history, theology, psychology, literature, and philosophy before those modern disciplines were formalized; 3) literature, however, largely has remained unbounded, able to probe realms of statecraft which other disciplines have placed off–limits… (p.7)

This is all the more true with the realm of science fiction which probes areas that today are becoming science fact all too quickly: the expansion of the surveillance state (Hallo, Huxley! How do you do, Mr. Orwell?), cyberwarfare (Paging the U.S. Cybercommand: William Gibson would like his future back), and the use of drones (Are we waiting for Godot or for Skynet?). But science fiction is not just about technology, it can be a way to see the present from a new angle. It can be political science fiction and political science fiction at the same time.

What fiction can bring to international law has been on my mind a bit these last few weeks. The ongoing “revelations” about the massive surveillance program that modern technology enables our (and I’m sure, other) government to undertake has caused a “we are living in a sci-fi world” meme to pop-up more and more often in the main stream media. Last week, Christopher Warren blogged here about the relationship of international law to the humanities…

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Regulating the Global Market of Zero-Day Exploits

by Chris Borgen

Nicole Perlroth and David E. Sanger describe in the July 14 New York Times the increasingly global trade in computer vulnerabilities. The recent growth of this hacker market has been fueled by purchases by the U.S. and other governments. Can this market be effectively regulated? And if it is eventually regulated, would it be for the wrong reasons?

Let’s take a step back. Let’s say there is some hacker, call him DarthBorgen, who seeks out holes in company firewalls, e-mail systems, online payment systems, cellphone operating systems, and so on. The most interesting hole to find is a “zero-day exploit,” a vulnerability that the company does not even know about. (“There are zero days between the vulnerability being discovered and the first attack.” ) If DarthBorgen is a “black hat” hacker he may use that exploit to steal from the company himself or he may sell it to a rival company what would use it in some illegal corporate espionage.

However, he may post the exploit to one of the hacker boards and as a means to burnish his reputation as a skilled hacker. His goal would not be to steal but to show off. Once he posts, the company would also probably learn of the exploit and they would patch it. Maybe, when a company was looking for a security specialist down the line, they might contact DarthBorgen, due to his formidable skills and reputation in the hacker community, and offer him a consulting fee. DarthBorgen might even become a computer security consultant who only tests a company’s systems at their request so that they may better understand their own vulnerabilities. (Maybe he changes his tag to ObiWanBorgen.)

Hackers started to increasingly go directly to companies where they found zero-day exploits and offering to sell their information to that company. This meant that exploits began to have a market value based on what the vulnerable company would be willing to pay for the information about the exploit.

At the crux of the Perlroth and Sanger article is how the arrival of government money has transformed the exploits market.

The U.S. government was an early mover in paying increasingly larger sums for exclusive access to exploits. And, importantly, while companies paid for exploits in their own system so that they may patch the holes, the U.S. government paid for exploits so that they could hack computers in intelligence operations or law enforcement investigations. Keep in mind that Internet Explorer and iPhones (to take two examples) are used all around the world by private citizens, governments, and companies.

Other governments followed suit. Perlroth and Sanger report that:

Israel, Britain, Russia, India and Brazil are some of the biggest spenders. North Korea is in the market, as are some Middle Eastern intelligence services. Countries in the Asian Pacific, including Malaysia and Singapore, are buying, too, according to the Center for Strategic and International Studies in Washington.

At a cyberconflict conference that we had at St. Johns in April, Christopher Soghoian of the ACLU spoke about the exploits market. In an interview for Sunday’s New York Times he said:

“The [company-funded] bounties pale in comparison to what the government pays.” The military establishment, he said, “created Frankenstein by feeding the market.”

The March 20 issue of The Economist had an article on the “digital arms trade” that included minimum prices for zero-day exploits for various programs. That article listed Internet Explorer exploits fetching at least $500,000, Windows 8 about $250,000, and iPhone 5 about $200,000 per exploit. The Times article quotes some lower prices, stating that “[t]he average flaw now sells from around $35,000 to $160,000.” Regardless of which figures are more accurate, all this government money is irrigating the hacker economy. Companies have sprung-up to take reap the benefits of the money being poured into the exploits market with a business model around finding exploits and then sending them to the highest bidder (often intelligence agencies).

The Times article noted a 2007 paper on the exploits market by Charlie Miller, a former NSA employee who was offered $80,000 by the U.S. government for a bug that he had found in Linux…

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Managing Intractable Conflicts: Lessons from Moldova and Cyprus

by Chris Borgen

 

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The Open Society Foundations, the Global Political Trends Center (GPoT) of the Istanbul Kultur University in collaboration with Moldova’s Foreign Policy Association and the East East Beyond Borders  Program of the Soros Foundation-Moldova recently completed a project comparing and contrasting the separatist conflicts over Northern Cyprus and Transnistria. The project team included policy experts from Turkey, Cyprus, Greece, Moldova, and me. My focus was on the international legal issues and I contributed a chapter focusing on Moldova. (Long-time readers of this blog may have read my analyses–such as this post–concerning the Transnistrian conflict.)

In preparation of the report, we met in June 2012 in Istanbul and in Northern Cyprus with policy experts and representatives of various parties. In September 2012 we reconvened and had meetings and interviews in Chisinau (Moldova’s capital) and in Transnistria.

The final report, Managing Intractable Conflicts: Lessons from Moldova and Cyprus, was recently published by GPoT and is available as a .pdf via this link.

 

Okinawan Independence and Overlapping Interests

by Chris Borgen

My thanks to Brad Roth for pointing me to a recent New York Times article on activists in Okinawa seeking secession from Japan. Okinawa is part of the Ryukyu island chain. The Ryukyu Kingdom was an independent or semi-independent state until annexed by Japan and renamed the Okinawa Prefecture in 1879. It was occupied by the Allies in World War II and was administered by the U.S. from 1945 until 1972, when it was returned to Japan. (For more on the history of Ryukyu/ Okinawa, see, for example, John Michael Purves’ website.)

According to another article from Asahi Shimbun, arguments for independence are based on an “anti-reversion theory,” that was argued at the time of the U.S returning the islands to Japan in the early 1970’s. “The theory stated that it is an illusion to believe Okinawans can live a peaceful life under Japanese sovereignty.”

A thread running through the Times article is that although the independence movement has been, and is still, relatively small, it is now gaining more attention, getting some modest political traction, and is being taken more seriously than it has since the end of the U.S. administration of the islands.
Why? Because the secessionist movement is becoming increasingly relevant to both the U.S. and China. Consider the implication for U.S. military bases:

“Until now, you were mocked if you spoke of independence,” said one speaker, Kobun Higa, 71, a retired journalist whose book on the history of the tiny independence movement has become a hot seller online. “But independence may be the only real way to free ourselves from the American bases.”

Mr. Higa and other advocates admit that few islanders would actually seek independence for Okinawa, the southernmost Japanese island chain, which is home to 1.4 million residents and more than half of the 50,000 American troops and sailors based in Japan. But discontent with the heavy American presence and a growing perception that the central government is ignoring Okinawans’ pleas to reduce it have made an increasing number of islanders willing to at least flirt publicly with the idea of breaking apart in a way that local politicians and scholars say they have not seen in decades.

According to Asahi Shimbun, “Okinawa Prefecture accounts for only 0.6 percent of Japan’s landmass, but it hosts 74 percent of all U.S. military bases in the country.”

As for China, various activists for Okinawan statehood say that the independence movement:

still has the potential to complicate Japan’s unfolding contest with China for influence in the region.

That struggle expanded recently to include what appears to be a semiofficial campaign in China to question Japanese rule of Okinawa. Some analysts see the campaign as a ploy to strengthen China’s hand in a dispute over a smaller group of islands that has captured international headlines in recent months. Some Chinese scholars have called for exploiting the independence movement to say there are splits even in Japan over the legitimate ownership of islands annexed during Japan’s imperial expansion in the late 19th century, as Okinawa and the smaller island group were.

China/ Japan diplomacy concerning Okinawa is a topic that Julian has previously explored.

While independence movements may become part of geopolitical chess games, they tend to be motivated by much more local concerns. The relationship of Okinawa to the political leadership in Tokyo is clearly a major driving force for the independence movement. Even the U.S. base issue may be best understood less as a geopolitical question, but an issue of budget allocations within a state. According to Asahi Shimbun, one of the independence leaders decided to start his group

after he heard about a meeting of prefectural governors in 2010. At the meeting, Okinawa Governor Hirokazu Nakaima demanded that central and local governments significantly reduce Okinawa’s burden of hosting U.S. military bases, but almost no governors supported him.

“To achieve a breakthrough on the bases issue, discussions on the option of independence are necessary,” said Matsushima.

I’m not convinced that all politics is local, but secessionist movements usually are. Moreover, they often include very personal issues of identity.

According to the New York Times, there is renewed interest in the Okinawan language and in arguments claiming a distinct Okinawan ethnic identity. This reinvigoration of linguistic, cultural, and ethnic identity can drive secessionist claims, but they are also at times spurred on by calls for independence. (For a short history on language politics in Okinawa, see this.)

What I find especially interesting is this Venn diagram of overlapping interests and intents. Some calls for independence movement may actually be motivated by domestic budgetary politics. But this then overlaps with U.S. security concerns in Asia. And the existence of a secessionist claim also overlaps with China’s interest in the Senkaku/ Diaoyu Islands (See also, this.). And, lest we forget, there is probably a group of people that honestly believes that their national identity is being frustrated by being part of Japan.

That’s a lot of political interests converging on a few small islands. It will be interesting to see whether and how much the independence movement dissipates if Tokyo grants budgetary relief to Okinawa Prefecture. Stay tuned…

Diving into Domestic Data Mining

by Chris Borgen

Network from Michael Rigley on Vimeo.

Via Boing Boing a very good short animation discussing data mining. This isn’t focused on the NSA program that is currently the source of discussion and dispute but the broader issue of how both companies and governments are able to retain, purchase, and analyze massive amounts of data.

For a deeper dive into data mining, I highly recommend Inside the Matrix, James Bamford’s March 2012 cover story for Wired. Bamford has written four highly regarded books on the history of the National Security Agency. (See this New Yorker profile of Bamford as the NSA’s “chief chronicler.”) His Wired article focuses on the NSA’s new massive data center in Utah.

But, given that so many people seemed shocked– shocked I tell you!– to hear that the NSA is data mining information from domestic calls, one should read what Bamford wrote over a year ago about NSA activities (not to mention what he had written in his books about the NSA’s history of testing 4th Amendment limits, if not transgressing them):

For the first time, a former NSA official has gone on the record to describe the program, codenamed Stellar Wind, in detail. William Binney was a senior NSA crypto-mathematician largely responsible for automating the agency’s worldwide eavesdropping network. A tall man with strands of black hair across the front of his scalp and dark, determined eyes behind thick-rimmed glasses, the 68-year-old spent nearly four decades breaking codes and finding new ways to channel billions of private phone calls and email messages from around the world into the NSA’s bulging databases…

OK, so we’re not talking about a new hire at Booz Allen.  Later, Bamford continues:

Binney left the NSA in late 2001, shortly after the agency launched its
warrantless-wiretapping program. “They violated the Constitution setting it up,” he says bluntly. “But they didn’t care. They were going to do it anyway, and they were going to crucify anyone who stood in the way. When they started violating the Constitution, I couldn’t stay.” Binney says Stellar Wind was far larger than has been publicly disclosed and included not just eavesdropping on domestic phone calls but the inspection of domestic email. At the outset the program recorded 320 million calls a day, he says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts. The haul only grew from there.

Emphasis added.  So, the answer, my friend, has been blowin’ in the [stellar] wind for some time now.

Bamford’s article is long and it is excellent. It provides context for today’s debates. And, as for that new NSA facility? Consider this:

Given the facility’s scale and the fact that a terabyte of data can now be stored on a flash drive the size of a man’s pinky, the potential amount of information that could be housed in Bluffdale is truly staggering. But so is the exponential growth in the amount of intelligence data being produced every day by the eavesdropping sensors of the NSA and other intelligence agencies. As a result of this “expanding array of theater airborne and other sensor networks,” as a 2007 Department of Defense report puts it, the Pentagon is attempting to expand its worldwide communications network, known as the Global Information Grid, to handle yottabytes (1024 bytes) of data. (A yottabyte is a septillion bytes—so large that no one has yet coined a term for the next higher magnitude.)

It needs that capacity because, according to a recent report by Cisco, global Internet traffic will quadruple from 2010 to 2015, reaching 966 exabytes per year. (A million exabytes equal a yottabyte.) In terms of scale, Eric Schmidt, Google’s former CEO, once estimated that the total of all human knowledge created from the dawn of man to 2003 totaled 5 exabytes. And the data flow shows no sign of slowing. In 2011 more than 2 billion of the world’s 6.9 billion people were connected to the Internet. By 2015, market research firm IDC estimates, there will be 2.7 billion users. Thus, the NSA’s need for a 1-million-square-foot data storehouse. Should the agency ever fill the Utah center with a yottabyte of information, it would be equal to about 500 quintillion (500,000,000,000,000,000,000) pages of text.

The data stored in Bluffdale will naturally go far beyond the world’s billions of public web pages. The NSA is more interested in the so-called invisible web, also known as the deep web or deepnet—data beyond the reach of the public. This includes password-protected data, US and foreign government communications, and noncommercial file-sharing between trusted peers…

Yeah, you really should read Bamford’s article.