US Federal Judge: NSA Domestic Surveillance Likely Unconstitutional

In the first federal ruling in open court on the constitutionality of the NSA’s surveillance activities, US Federal Court Judge Richard J. Leon has ruled that the bulk collection of phone metadata is likely to violate the Fourth Amendment prohibiting unreasonable searches (via WaPo):

‘I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval…No court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion.’

Leon has granted a preliminary injunction against the NSA, stayed pending government appeal.

Edward Snowden, whose leaked documents uncovered the surveillance, on the ruling:

 ‘I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.’

Overseas surveillance, of course, is not substantially affected by the ruling. In Australia at least, there is surprisingly little concern over NSA surveillance when compared, for example, to the response in parts of Europe. Greens senator Scott Ludlam appears to be the only prominent politician to publicly and regularly address its implications in or out of parliament.

The US is Still in the Dark on the Extent of Snowden’s Data Cache

Following on from my previous post, the New York Times reports that after six months of investigation US intelligence and law enforcement investigators still don’t know the full extent of the data Edward Snowden took from the NSA:

“They’ve spent hundreds and hundreds of man-hours trying to reconstruct everything he has gotten, and they still don’t know all of what he took,” a senior administration official said. “I know that seems crazy, but everything with this is crazy.”

Closer to home, the Weekend Australian argues today that the outrage over revelations, via Snowden, of Australia’s bugging of the personal mobile phone of Indonesian PM Susilo Bambang Yudhyono’s wife, Kristiani Herawati, was misplaced: Herawati should not be seen as politically passive, but as one of SBY’s closest advisers.

(H/T: TechCrunch)

Snowden, Assange and the Ancient History of Seeking Asylum


An article I published at The Conversation in July 2013:

As Julian Assange remains inside the Ecuadorian embassy in London and Edward Snowden, last thought to be Venezuela-bound, attempts to avoid capture by an enraged United States, the grant of asylum has become a matter of contemporary global interest and debate. Yet its origins are ancient, and its exploitation in interstate politics was there from the beginning.

Asylum, like many English words, has its linguistic roots in Ancient Greek.

The Greek term was “asylia”, a compound of “sylē”, meaning the right of seizure or reprisal, and the prefix “a-”, denoting the absence of something. A site characterised by asylia was declared to be immune from attack or plunder. The Romans adopted the word and Latinised it into the form with which we are familiar. The noun “asylum” therefore came to refer to a place which afforded such protection.

For the ancient Greeks, the idea of territorial inviolability appears to have originated in the religious sphere. Temples of the gods and the holy precincts within which they were situated were understood to be off limits to the regular plundering raids which were a common reality in the ancient Mediterranean world.

Those who violated the sanctuary of a particular god or goddess risked incurring their divine wrath. This protection extended not only to the temple and cult objects, but also came to include people who entered the sanctuary’s “temenos”, or sacred boundary. Flight to a sacred space became a way for individuals to escape their pursuers, even if the inviolate status of sanctuaries was not always respected in practice.

Yet the Greeks also understood that whatever power the gods might be seen to possess, the credibility of asylia in practice had to be secured through human intervention. In 242 B.C., the citizens of Cos, one of the eastern-most Greek islands in the Aegean Sea, wrote to their neighbours to ask that they recognise the asylia of their city’s sanctuary to Asclepius, the god of healing who was the city’s patron deity. The replies received were engraved on stone slabs and publicly displayed in the city; they included assurances of the sanctuary’s status by some of the most powerful polities of the eastern Mediterranean world.

Such protection was not limited to divine precincts. In 203/2 B.C., the Greek city of Teos (on the western coast of modern Turkey) secured asylia for its entire territory from the main power in the region, the Seleucid empire ruled by King Antiochus III.

Grants of asylia provided concrete benefits to their recipients, both as a mark of honour and as an affirmation of safety from harm. Yet they were also important tools in ancient international relations. When the people of Teos accepted protection for their city, they acknowledged King Antiochus’ power.

When Rome’s influence in the same region began to rival that of Antiochus, the Romans also recognised Teos’ claim to asylia in 193 B.C. in order to assert their own authority. Recognising asylia not only provided benefits to the protected, but also served to emphasise the power and status of those guaranteeing their protection.

Against this historical background, it should come as no surprise that granting asylum to Julian Assange and Edward Snowden has come to symbolise far more than a specific application of international law. Through its sheltering of Assange, Ecuador has implicitly undermined the power of the US and the United Kingdom. The harsher treatment of Snowden – and in particular the recent refusal of transit to the Bolivian president’s plane falsely suspected of carrying the former NSA analyst – demonstrates the extent to which this lesson has been learnt by the international community.

At a special meeting of Latin American leaders, Bolivian president Evo Morales recently commented that “being united will defeat American imperialism”. Ecuador’s president, Rafael Correa, has suggested that had a US or European head of state been treated as Morales was, it would have been considered sufficient pretext for military action. Both comments make clear the perceptions of power at stake.

The conflict between the US and Ecuador or Bolivia remains a diplomatic one, and the above comments are perhaps best seen as the product of a righteous, if relatively impotent, indignation. Yet were Snowden to reach Bolivia and be granted asylum, the possibility of escalation in a region with a long history of US intervention – while perhaps unlikely – should not be dismissed out of hand.

In 190 B.C., when the people of Teos agreed to support Antiochus III in his conflict with Rome by storing supplies for him in their city, the Romans had no qualms about attacking their territory, despite their affirmation of Teos’ inviolate status only three years earlier.

Then, as now, asylum could be as much a tool of interstate politics as a right which afforded safety to those who claimed its protection.

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