David Miranda – Remember his name.

David MirandaOur attitude to anti-terror policing is very strange indeed. In many ways, it is like a magician’s trick. We (the public) turn up at the show with the full intention of suspending our disbelief so as to be entertained and entranced. The magician pulls the rabbit out of the hat, or makes the Statue of Liberty disappear. We applaud, we are entranced.

But we know , somewhere in the back of our minds, that we are being fooled.

As with our safety from terror. We are happy because major terrorist attacks in the UK or US are thankfully rare. We are told about countless attacks which have been thwarted. We applaud, we are entranced. But we know, somewhere, that there must be a price.

That price is our civil liberties. More accurately, that price is the civil liberties of others, who we don’t know but whose faces occasionally drift through the public conscience. Binyam Mohamad, who was tortured by the CIA, apparently with collusion by our own Security Services. Shaker Aamer, who has been detained in Guantanamo Bay without charge for almost 12 years. And it is no secret that many anti-terrorism laws are draconian and involve a huge potential for abuse.

Which is where we encounter David Miranda. Schedule 7 of the Terrorism Act 2000 includes a stop and search power which, according to the Independent Reviewer of Terrorism Legislation David Anderson QC, is “among the strongest of all police powers” (2012 report, para 9.3). I will leave the detail to others such as Obiter J, Joshua Rozenberg and David Allen Green. In essence, this is a power which allows a person to be questioned for up to nine hours, potentially without a lawyer , for the purposes of determining whether they appear to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism. No reasonable suspicion is needed.

This is a weighty power and also a heavily used one. 61,145 people were examined under Schedule 7 in 2012 alone (Anderson, 2013 report, 10.7). Most of them self-described as ethnic minorities (2013 report, p.98).

And this is not news. Or at least, it shouldn’t be news. The power has existed in some form since 1974, and has received significant criticism from the Independent Terrorism Reviewer in successive reports, as well as being the subject of consistent campaigning. The Coalition Government has listened and after an extensive public consultation has now proposed in a new bill fairly significant reforms to the law.

But we, the public, have closed our ears to the this for years. It is all part of the magic trick. We are safe and we don’t ask questions. Or at least, the fear and noise generated by a major terrorist attack drowns out the sound of questions for years after.

Harvard professor Alan Dershowitz infamously argued in 2002 that the time had come for torture warrants. He was pilloried for seeking to legitimise torture, but perhaps he was misunderstood. He was right that, post 9/11, the US would torture anyway, so maybe he was also right to seek some sort of legal oversight.

This is incredibly difficult stuff, morally and legally. But the alternative is that we (certainly in the US, maybe in the UK) allowed state-sanctioned torture to happen, whether directly or by rendition, and accepted it as part of the magic trick of preventing terrorism. We express shock and disgust when, occasionally, these acts emerge from the depths, but who is really to blame here, the actor or the bystander?

And then comes the lull. There has not been a terrorist attack involving 10s or 100s of casualties in the UK or US since 2005. Our ears are slowly becoming attuned again to the underlying hum of illiberal legislation. And so a case like Miranda’s arises and it just sounds wrong, whether or not it is legal or illegal under current law. The detention of a journalist (perhaps a journalist’s assistant), the search of his journalistic materials without any of the usual checks or balances. There are hard questions about the line between whistle blowing and espionage (David Aaronovich has described the complexity best), but the sense of unease over this case is real and justified.

The legality of Miranda’s detention

Was he detained unlawfully? I am not sure. His solicitor’s pre-action letter sets out a fairly convincing case. But there are two potential holes in the reasoning, in my view.

First, the statement that the schedule 7 powers are “only capable of being exercised where the individual in question is not suspected of being involved in terrorism” (para 28). The argument runs: we know that Miranda’s detention was planned in advance, so surely he was suspected, so the power was used unlawfully. A similar argument has been made by David Allen Green. But unless I am missing something, that description of the limits of Schedule 7 is too narrow – see Mr Justice Collins in CC v The Commissioner of Police of the Metropolis & Anor [2011] EWHC 3316 (Admin):

16 … the language of s.40(1)(b) is wide enough to allow for examination not only of whether he appears to be a terrorist but also of the way in which or the act by which he so appears. The officer is not, unless the powers are to be ineffective in their purpose to protect from terrorism, prevented from examining a person even if it appears he is a terrorist in particular respects, for example if in the past or by acts only affecting a foreign government.

So it seems that suspicion of being involved in terrorism does not prevent the use of Schedule 7 to question about “the way in which or the act by which he so appears“. It is, as I have said, a very wide power.

A second issue with the solicitor’s letter is that the definition of terrorism (para 31) may be too narrow. In fact, section 1 of the Terrorism Act also defines an act of terrorism as one “designed seriously to interfere with or seriously to disrupt an electronic system.”

So if Miranda was carrying stolen state secrets on memory sticks, he might have fallen under the Schedule 7 powers. Just. It might be said that at the early investigatory stage, the Security Services and Police are entitled to find out a bit more about the state secrets apparently being carried, perhaps illegally, by Miranda, to see whether they could or have fallen into the wrong hands. This is not an arrest; merely questioning.

But the powerful counter argument, as made by a comment below, is that this kind of guerrilla journalism was never intended to fall within a provision which is clearly aimed at major cyber hacking. For a full discussion of this issue, see Carl Gardner’s post.

I expect that we will learn more about this troubling, fascinating case in the coming weeks. Do not be surprised, though, if the Judicial Review proceedings are quickly cloaked under a “Closed Material Procedure”, another draconian power which is, unlike Schedule 7, brand new. As to the outcome, I think this is going to be finely balanced, although as Miranda’s solicitor’s letter points out, under human rights law the courts have now begun to make encouraging noises about limiting stop and search powers, even when used to prevent terrorism, where a lot of leeway is given to states – the human rights proportionality exercise may be the most powerful weapon Miranda has.

The conjurer’s tricks

But even if it was legal, that doesn’t make it right. Schedule 7 is a very widely drafted power indeed. The fact that it can be used to investigate an act which almost nobody would define as “terrorism” is probably more a testament to its frighteningly wide scope than to the moral integrity of the action itself.

Which brings me back to the magic. The public may be happy to choose ignorance over moral hazard. But, paradoxically, underlying that choice is also a huge bank of trust. A strange kind of trust, because it the trust not to abuse these wide powers, but also – nudge, wink – to sometimes use them “robustly”. That dissonance probably cannot survive a long period without frightening major attacks.

An issue like this can be ignored for years until the time is right for it to emerge from our guilty subconscious. And even when the time is right, we still need a trigger. With phone hacking, it was Milly Dowler. Perhaps David Miranda will be the trigger to start unwinding some of our more oppressive anti-terrorism laws.

But, for that to happen, we need to remember his name, even after his story leaves the front pages. Even harder, we need to remember his name after the next terrorist attack. Because there is no magic, only the conjuror’s trick. And we, the public, are the greater fools for allowing ourselves to be tricked.

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20 thoughts on “David Miranda – Remember his name.

  1. Adam

    I cannot see, following Louise Mensch’s line of enquiry, how Miranda can be classed as a potential terrorist, which is the only ground permitted to stop/detain under sched 7 – important to note that sched 7 refers only to s.40(1)(b) and not the wider definition in s.40(1)(a). Hard to see how (in your words) carrying stolen state secrets on memory sticks (which I think is denied) this constitutes any element of the s.1 TACT definition. While not explicit, surely that element of s.1 is aimed at terrorist hacking – “designed seriously to interfere with or seriously to disrupt an electronic system” – so cannot conceivably (surely?) extend to the transporting stolen secrets. While, when they were stolen, there may have been an element of hacking (but by whom?) was this done to influence Gov or intimidate public and with an ideological etc purpose – seems a long long way from that too, these being genuine journalistic purposes at the time by both Greenwald and (if involved) Miranda i.e. to disclose whatever Snowden had recovered/obtained

  2. This is not the first Miranda case. The original one was in America with what are now referred to as Miranda rights, i.e. that suspects should be “read” their rights in law before being questioned. This Schedule 7 removes even that right from individuals, as it makes it an offence for suspects not to answer any questions put to them and suspects are not entitled to have a lawyer present during questioning. A former MI6 intelligence officer questioned about the circumstances of our own Miranda case on Newsnight opined his belief that holding Mr Miranda for the full 9 hours was excessive. I suspect this was done because of the long flight time to Brasil. Any shorter flight distance would have revealed the fact that Mr Miranda had been stopped and held incommunicado in London Airport much sooner. Overall, this is a form of state bullying, as The Guardian has now revealed was applied to it too. This event has also upset Brasilians too. Let us not forget Charles de Menezes, the entirely innocent Brasilian who was shot dead on the London Underground. At this rate, any Brasilian engaging in international travel would be forgiven for specifying avoidance of UK borders and interior travel.

    • The length of the flight is unlikely to be of any relevance.
      From one side, the authorities were clearly not concerned whether anyone knew Miranda had been detained (he was permitted to summon a solicitor but not speak to him for several hours). From the other side, unless someone was specifically expecting Miranda to arrive at a certain time in Brazil, why would anyone know he was late—and, as any frequent flier knows, there are a hundred legitimate reasons why a person might be delayed without communication. Finally, if he was somehow expecting to be questioned, it was rather silly to choose to connect through London Heathrow instead of flying non-stop with Lufthansa.

  3. I’m a bit disappointed that your article fails to emphasise the real reason for Mr Miranda’s detention. The sole reason being, not for any terrorism activity “whatsoever”, but for reasons that the State & its ally had been caught out in respect of some underhanded surveillance activity (NSA/GCHQ). Not once does your biased article emphasise the public perspective in respect of what these journalists are trying to achieve in respect of revealing underhanded State surveillance activity.

    This whole episode shows how desperate the UK & its ally are in respect of their shoddy attempt at disrupting public awareness of their underhanded activities. Plus, do they (the State) honestly think that this would be the desired route of transit in respect of such publicly crucial material? I wouldn’t mind betting that once encrypted, the seized electronic equipment displays a nice one fingered gesture? Keep up the good work Mr Greenwald.

    Miguel Cubells

  4. Lord Falconer, who helped introduce the 2000 Act, has now criticised its use here saying it is designed for random spot questioning. I wonder whether the CC v The Commissioner of Police of the Metropolis & Anor [2011] EWHC 3316 (Admin) passage quoted above has been misinterpreted. Perhaps the judge meant that questioning could continue after the officer has determined that the person has at some time been involved in the commission of acts of terrorism in order to gain further information under coercion.

    http://www.theguardian.com/world/2013/aug/21/david-miranda-law-detention-heathrow

    • I realise I’m wrong here after reading paragraph 27 of the CC judgment. This is a poorly written judgment in my opinion. A crucial fact is not set out until this paragraph, after all the relevant law has been outlined. It suggests that the reasoning is also poor. Collins relies on the terror watchdog report into current practice (and a very old one too) to justify the expansion of the circumstances in which detentions can be carried out. At a stroke, the original intent of the code (random suspicionless spot checking) is perverted into targeted stop and search of known individuals under coercive threat of criminal sanctions.

  5. Thanks you for linking to my blog …

    Schedule 7 does not require suspicion but the Examining Officer’s Code is clear that examinations have to be for the purpose of TA2000 s40(1)(b) and have to be based on one or more of a (non exhaustive) list of factors. Even if there is suspicion about X, levels of suspicion vary and I see nothing in the Act or Code to prevent an examination even where there is some suspicion about an individual’s actions. The level of suspicion may not amount to enough to make an arrest.

    The definition of terrorism does extend to ‘designed seriously to interfere with or seriously to disrupt an electronic system’ but it is hard to see how Miranda’s actions (as we understand them) could ever interfere or disrupt an electronic system.

    We know too little of the government / Police side of this matter to conclude one way or the other about the legality of the detention. The solicitors have asked for disclosure of government involvement and we are told that Theresa May was ‘ informed’ about plans to detain Miranda. Does ‘informed’ mean ‘consulted’ or ‘approved’ or what? She says it was down to the Police.

    I am not sure whether Dershowitz was misrepresented. However, if States are serious about the UN Torture Convention then they should be active in stamping out this hideous practice. Turning a blind eye is not good enough. Of course, the House of Lords did not rule out executive use of information obtained by torture in so-called ‘ticking bomb’ scenarios.

    • Thanks Obiter J – I agree with your analysis. The only point I’d make is that it is not quite right to say that the Examining Officers Code (page 8) states that examinations “have” to be based on one or more of the non-exhaustive list of factors: the exact wording is:

      “examining officers should base their decisions on a number of considerations, including factors such as”

      So not only non-exaustive but I think probably it is not obligatory to base the search on even one of the factors.

    • Thanks Obiter J – I agree with your analysis. The only point I’d make is that it is not quite right to say that the Examining Officers Code (page 8) states that examinations “have” to be based on one or more of the non-exhaustive list of factors: the exact wording is:

      “examining officers should base their decisions on a number of considerations, including factors such as”

      So not only non-exaustive but I think probably it is not obligatory to base the search on even one of the factors.

  6. And not once did you quote the superb and underrated Christopher Nolan movie ‘The Prestige’:

    “The magician takes the ordinary something and makes it do something extraordinary. Now you’re looking for the secret… but you won’t find it, because of course you’re not really looking. You don’t really want to know.
    You want to be fooled.”

      • All the more apposite since the movie concerns two magicians doing horrible and blood curdling things and passing them off as illusions to entertain the crowd.

        The line is repeated at the end of the movie, the emphasis being on ‘you want to be… fooled’ which makes it all the more sinister and implicating the viewer in the various sins of the protagonists through our/their voyeurism.

        Also – see the immediately dated yet suddenly never-more-relevant Robert Redford/Sydney Poitier movie ‘Sneakers’, in whcih the NSA are the bad guys, driving a Hammett-style plot by their desire to recover a decoder box which would only allow them to spy on American citizens. That was back in 1992…

  7. Surely the appropriate legislation to deal with this would have been ss.1 and 6 of the 1911 Official Secrets Act?

    1.
    (1)If any person for any purpose prejudicial to the safety or interests of the State:

    (c)obtains, collects, records, or publishes, or communicates to any other person any secret official code word, or pass word, or any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy
    he shall be guilty of felony.

    Given what the Home Office spokesman has admitted was the purpose of Miranda’s detention, and the presence of legislation designed to deal with just such a circumstance, it would appear to me that the use of TACT is clearly an improper use, as under no construction could Miranda have been suspected of, or it taken long to determine that, he was not “[n]or has been concerned in the commission, preparation or instigation of acts of terrorism”, even if you consider hacking to be an action that “is designed seriously to interfere with or seriously to disrupt an electronic system.”

    Moreover, even if you got over that hurdle, the action or threat would still have to be “made for the purpose of advancing a political, religious racial or ideological cause”.

    We’d be in a very bad place if a judge were to accept that journalism falls under that classification.

    Maybe we are there, but if that is the case, then we should all indeed be even more concerned; and even if we are not, that the police and security services believe that we are is frightening in itself.

    • (It also just occurred to me that even Snowden didn’t actually hack anything. He downloaded files he had access to in his capacity as an NSA contractor for Dell and Booz. So not even he would meet the definition of terrorist as contained in the act.)

  8. Let me see if I can put this into some form of perspective. Sch 7 TA 2000 requires no ‘reasonable belief’ nor ‘reasonable suspicion’. An official may under a non-legally binding ‘code’ either of his own volition, or in accordance with a request by our own or a foreign intelligence service, detain any individual, confiscate his property, subject him to questioning of unlimited scope, with a failure to answer satisfactorily, carrying a lengthy prison sentence.

    If the individual is foolish enough to seek legal redress, the authorities will apply for, on grounds of ‘national security’, and be granted leave to have ‘closed evidence’ procedure initiated to prevent the applicant seeing and questioning the evidence used to justify his arrest, detention and the deprivation of his property and he will meet the cost of bringing an action he has little chance of winning.

    This may be followed by the Independent Reviewer of Terrorism calling for evidence that he alone is privy to. He may produce a report making recommendations that the government are under no obligation to put into effect. And all of this is carried out by a government who are acting to safeguard out ‘fundamental freedoms’!!!?

    Who is it that represents the greater threat to my liberty, security and freedom? The man in the Keffiyeh or the man in the Pinstripe Trousers? Or is it simply a choice between a quick death from the former or a slow death from the latter?

    You decide!

  9. Pingback: Lexplain | The detention of David Miranda: why is it being challenged?

  10. i remember a Labour Party Conference several years ago when Tony Blair was interrupted during his speech justifying the invasion of IRAQ by an elderly lifelong labour supporter who dared to shout “rubbish”.That man was removed by police and detained for sometime under the “anti terrorism” acts ;Surely that was a gross misuse of those powers ? Nobody was reprimanded let alone demoted or dismissed for what amounted to an unprovoked criminal assault on an obviously harmless and law abiding person.How can one have confidence that powers to combat terrorists will not be used to harass and even detain “awkward citizens” who do not hold the politically correct views that are increasingly being forced on us?

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