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Abstract

The War on Terror is not limited to the United States, but rather, requires the cooperation and dedication of European allies which also have suffered from deadly terrorist attacks. A casualty of President Bush's foreign policy at times during his term was the alienation of the United States' traditional European allies which have acquired invaluable experience in counterterrorist operations and strategy stemming from their historical circumstances. This Note will discuss the historical differences between the U.S. and European attention and approaches to counterterrorism to provide a context in which to contrast the spectrum of national security wiretapping procedures, standards of evidence, and oversight systems in the United States, the United Kingdom ("U.K"), and Germany. Part I briefly chronicles the historical derivation of the U.S. judiciary's response to electronic surveillance to recognize the broader philosophical and legal framework in which national security wiretapping inaptly remains. Part II is a comparative analysis between the United States and Europe: it discusses their differing notions of privacy and details their distinct pre- and post-9/11 intelligence structures and wiretapping strategies, ultimately highlighting the Europeans' savvied practicality for counterterrorism, which the German and British nonjudicial approaches to national security wiretapping best exemplify. Part III calls for the abolition of the FISC and the subsequent adoption of elements of the German and British procedures, evidentiary thresholds, and models of oversight for U.S. national security wiretapping involving foreign intelligence, with the recognition that such changes must conform to the U.S. system of checks and balances if Congress is to assume the role of overseer.

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