UK Court: David Miranda Detention Legal Under Terrorism Law
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The legal system was pretty much the first thing to fall there as well as the criminalisation of literally everything. We have so much legislation now that deals with criminalising people that people don't have a chance if they get in trouble even for something trivial.
Miranda was carrying classified files relating to UK intelligence gathering out of the country. You would have been stopped at the border for that at any point in the last 100 years. Almost any country in the world would do that.
I would question how many would then have a court system of the calibre of England and Wales' to allow the individual to appeal against it. The courts have repeatedly struck down bits of government anti-terror legislation, S44 being the most notorious.
Agree with your middle point however there are other laws in which he could have been stopped under which relate directly to the crime. Terrorism laws were picked selectively because they can hold suspects longer. This is the problem - everything looks like a target when a gun is handed to powerful people. This power was no accident either.
The courts are inconsistent in general. There is no law of the land any more -- it's down to the prosecutor's opinion unless it is trial by Jury. Consider the post-riot sentencing system that appeared to process suspects overnight without a fair trial. Many people were issued criminal charges and a prison term for civil issues that would have usually resulted in a fine or community service.
He was carrying them on a flight between Berlin and Rio de Janeiro, and was detained while in transit at Heathrow. Your comment that he was taking files "out of the country", while barely technically correct, is highly misleading. He didn't steal them in the UK and try to smuggle them out of the country; the files already existed outside the UK. In fact, they were stolen from an NSA site in the US by Edward Snowden.
You are attempting to board a plane in the UK, and the same tests apply to a simple change of flight as they do to passenger flying from the UK.
Out of interest, if he had in fact stolen them from the UK (in the same way Snowdon did) would you object to his being stopped? What if it were Snowdon himself on his way to Russia?
I think the only argument I can see is that after the leak the documents should have been declassified? Since they were in the public domain. Sort of. I can't get a copy of them though so I don't see that being totally applicable.
But since you asked...
"You are attempting to board a plane in the UK, and the same tests apply to a simple change of flight as they do to passenger flying from the UK."
Agreed. Transit passengers are subject to UK law. An important issue, though, is whether Miranda had actually committed any offence in UK law. Since he was ultimately released, it seems reasonable to assume that the police felt they couldn't establish that he had. Nevertheless, the judges in the present case found that the detention was a lawful means for the police to try to determine whether an offence had been committed. This seems reasonable to me, even though I'm sympathetic towards what Snowden/Greenwald/Miranda/Poitras have done to date.
"Out of interest, if he had in fact stolen them from the UK (in the same way Snowdon did) would you object to his being stopped? What if it were Snowdon himself on his way to Russia?"
First question: No, I wouldn't object. He could have committed a crime, even though I might argue that it was in the public interest. Second question: Depends on whether a crime had been committed by Snowden in the UK (unlikely, imo), or whether the UK had accepted a US warrant for his arrest (which they almost certainly would).
Declassifying the documents just because they had been leaked would be absurd.
I don't know if he was carrying the documents when he left, if so the same offence as Miranda.
Declassifying the documents just because they had been leaked would be absurd.
Yes, but to me it seems just as absurd to have openly available documents classified.
Miranda didn't commit an offence in the UK. He was released without being charged with anything. Today's judgement was about whether it was lawful to detain him under counter-terrorism laws.
That's just it though; it wasn't even misleading. They were:
- Materials relevant to UK national security. - Materials present in a UK airport. - Materials about to be sent (w/ Miranda) across UK borders.
Those were the material facts of the day Miranda was detained. 'cmdkeen wasn't being "misleading" by not including the months of actions that led to Miranda being there with those documents on that day, because they really are irrelevant to the point he was talking about.
If Miranda should not have been stopped because of press freedoms or whatever, then that would have been just as true if Miranda had been personally handled the documents by a GCHQ mole that morning, as if he'd obtained them in Brazil weeks earlier from Greenwald.
But then they as much as admit that the leak is real by pulling crap like this. It would be far more effective these days to simply claim that the leak was all honeypot disinformation, deny that it has any relation to real classified data, and imply that the leaker was flagged as an insider threat from the beginning.
When you arrest a journalist at the airport and hold him for hours, people might start to think said journalist is on to something.
The smart thing to do would be to arrest him, make a show of searching him, and quickly send him on his way without seizing anything, and then tell anyone who asks: "After a thorough search of the documents in his possession, no actual state secrets were found. Materials purporting to be classified as Top Secret were found, upon further investigation, to be decoys used by the US government to reveal its insider threats. Mister Snowden stole a lot of documents and gave them to the press, but if any of them were the real thing, we haven't seen them yet."
Between this, and destroying hard drives with angle grinders, they just look like Keystone Kops.
In the US, the system is stupid enough that once The Guardian has published a Top Secret document to the entire world, and someone visits their website with a non-classified computer, the security guys go just as crazy trying to clean up the leak from the affected machine as they would with a top secret file that somehow made it onto that machine from the secure network. To avoid this, the network guys add the Guardian website to the web filter rules. As a result, the only people in the world not allowed to read about the leak are the people cleared by the government as trustworthy enough to keep its secrets. Irony.
The system really is that stupid. It always has been. The problem now is that the humans running the system have lost the ability to act in a manner most other people would consider reasonable.
They stopped and searched someone at the airport who was carrying contraband information, after all.
One of the nicest things about the US copyright system is the rule that things produced by the US government are in the public domain. That is very much not the case in all countries. In the UK, the government does own the copyright on the things they produce, and they commercially sell it.
OpenStreetMap started in the UK because the government produced maps (by the Ordenance Survey) were very heavily copyrighted.
Beyond being a bit bureaucratic to classify files of other nations, but what does it mean if Sweden classify files created and kept the Norway government. Can it be used to jail Norwegian citizens if they travel to or from Sweden?
Mr Oliver Robbins, Deputy National Security Adviser for Intelligence, Security and Resilience in the Cabinet Office, indicates in his first witness statement (paragraph 6) that the encrypted data contained in the external hard drive taken from the claimant contains approximately 58,000 highly classified UK intelligence documents. Many are classified SECRET or TOP SECRET. Mr Robbins states that release or compromise of such data would be likely to cause very great damage to security interests and possible loss of life.
I call copyright infringement on grand scale. Authors' rights are internationally protected by the Berne Convention for the Protection of Literary and Artistic Works. If the UK is claiming authorship of documents created by US citizen, the UK is either commit a crime or breaching international treaties.
There are weird exceptions here, and i can't remember which agencies fall into them.
It is also uncertain if you can transfer moral rights. As I understand it, it is a legal gray zone to claim someone else wrote a copyrighted work.
It's fraud - http://www.legislation.gov.uk/ukpga/2006/35/section/2, cf. Section 2(1)(b)(i).
Yes, strictly speaking there is likely to be copyright infringement when a UK agent, say, copies a foreign document. But then there will also be treason, trespass and other similar crimes being committed [along with breach of other treaties than just TRIPs] that are also necessary if agents acting for the UK [or any country] are going to carry out such work.
Espionage is generally a crime.
Neither UK nor USA nor Europe are currently oppressive dictatorships. However, dissent is already punished without much appeal or protection available to those punished. Laura Poitras, Jacob Appelbaum as first who come into mind in this mind context.
Powerful anti-terrorist measures are appropriate against guy with bomb in backpack planning to kill thousands people tomorrow. They are not appropriate against occupy members essentially guilty of sitting on a side walk.
Similarly, strong anti hacking measures are appropriate for those who just store millions. They are not appropriate against journalists who humiliated powerful companies.
Twisting non-infractions of political opponents into "terrorist acts" is what is happening here. That is essentially little suppression apparatus being build and used, just not being powerful enough yet.
The more of it is build, the harder it is to stop next growth.
Comparing an action that occurs in our world today to a same action occurring 100 years ago does not invalidate the parallel being drawn because you are not accounting for the world being completely different.
As I see it, the technology advancements over that 100 year period have created a world that's much more sensitive to any encroachment in freedoms. So that same action can and, I believe, does align well to establish the parallel being drawn.
Give it time.
He was inconvenienced for a few hours.
Lets not go overboard here!
During the great Icelandic banking crisis, the UK government used anti-terrorism laws to seize assets held by Icelandic banks. I quipped at the time that maybe they were worried about the assets being used to buy lumber for longships from Norway and wealthy bankers going a-Viking again. They might furthermore give the folks up in Orkney ideas and what then? Lose Caithness and Sutherland? That's an existential threat there....
If it was legal to use anti-terrorism laws in that case against a foreign entity far removed from any real terrorist activity (moreso than, say, the British-owned HSBC), then it is hard to see how antiterrorism laws wouldn't be perfectly legal here or anywhere else. Maybe they can start arresting people for drinking tea suspiciously.
Anti-terror laws have been used way beyond their original intentions for a long time in the UK. In this case the original proponent of the legislation has come out and said excactly that.
Will it change anything? Nope.
Now of course the media, and parties that never had many barristers in them, demand MPs work "full time" - which means there is far less legal expertise available in drafting and scrutinising legislation.
That's why things like the Terrorism Act happen. The name gets politicians to vote for it, but the contents is overlooked and full of powers that are not scoped to terrorism investigations.
[1]: http://www.legislation.gov.uk/uksi/2012/1500/article/2/made
[2]: http://www.legislation.gov.uk/ukpga/2012/9/part/2/chapter/2/...
This is an oft-repeated distortion of the truth. The UK government did not seize any assets but, rather made a freezing order to prevent UK depositors' money being transferred from an Icelandic banks' UK-based subsidiary to Iceland (it was clear at the time that the Icelandic government intended to use - "steal" is probably a better word - foreign depositors' money to ensure that Icelandic depositors didn't lose out).
The freezing order was enacted under section 2 of the Anti-terrorism, Crime and Security Act 2001, on the basis that HM Treasury believed that "action to the detriment of the United Kingdom’s economy (or part of it) has been or is likely to be taken" by the Icelandic government. Critics of the UK governments' actions disingenuously refer to it as "anti-terrorism" legislation, conveniently ignoring the "Crime and Security" part of the Act's name. The freezing order was exercised correctly, appropriately and proportionally.
A fuller discussion of the topic can be found at https://news.ycombinator.com/item?id=7142487
David Miranda was found to be carrying tens of thousands of classified UK intelligence documents. I think he's lucky to have been allowed to go free, and not arrested for espionage. I suspect that the authorities felt a little sorry for him, given that he'd clearly been exploited by Greenwald.
Was he, though? I mean, we all "know" he was carrying secret documents, but have they ever proven that? If the files are encrypted and they can't crack it to prove what those documents were, then we don't know anything. For all we know (and unless there are news reports I haven't seen), Miranda/Greenwald/Poitras could have encrypted a million pictures of Rick Astley, deliberately to see if they could pull the government into abusing it's power.
I understand they had other 'terrorism' related reasons for detaining him (which I don't agree with), but the fact that someone can be detained simply for promoting a political or ideological cause is a disgrace. I'm sure it's there to stop extremist preachers but it's way to broad and sounds like it could be used to stop a hell of a lot of non-terrorists.
A Christian street preacher was arrested and locked in a cell for telling a passer-by that homosexuality is a sin in the eyes of God.[1]
Is the law too broad only when it hits someone whose cause you care about?
And how do we decide which opinions are "extremist" or may serve as justification for detention? Hey, maybe we could have courts rule on that.
[1] http://www.telegraph.co.uk/news/religion/7668448/Christian-p...
Sounds fine to me.
You can't expect to interrogate anyone who complains about you, that just exacerbates the situation.
Apart from the political and human-rights implications, what I find most interesting is how the police knew what Miranda was actually carrying. Paragraph 11 of the judgement quotes a police document (written before Minranda was stopped) justifying his detention:
"We strongly assess that MIRANDA is carrying items which will assist in GREENWALD releasing more of the NSA and GCHQ material we judge to be in GREENWALD’s possession. Open source research details the relationship between POITRAS, GREENWALD and SNOWDEN which corroborates our assessment as to the likelihood that GREENWALD has access to the protectively marked material SNOWDEN possesses. Our main objectives against David MIRANDA are to understand the nature of any material he is carrying, mitigate the risks to national security that this material poses..."
Which reads like supposition to me. Based on open source research? Please.
Later, in paragraph 13:
"The claimant’s hand luggage was examined, and items retained which as I have said included encrypted storage devices. Mr Oliver Robbins, Deputy National Security Adviser for Intelligence, Security and Resilience in the Cabinet Office, indicates in his first witness statement (paragraph 6) that the encrypted data contained in the external hard drive taken from the claimant contains approximately 58,000 highly classified UK intelligence documents."
Which is a very definite statement. Either it's based on guesswork, in which case the best that could be said is that it is merely an opinion, or else they broke the encryption (TrueCrypt?). I can't find anything in the facts section of the judgement to indicate that Miranda disclosed what he was carrying, or surrendered passwords.
[1] http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgment... [PDF]
In fact, none of the data released by Snowden is a danger to national security in any sense. The identity of spies has not been released. No passcodes to nuclear weapons have been revealed.
The courts ought to take responsibility to assess the legitimacy of executive privilege claims and make judgments based on the actual content being protected. But for whatever reason, they are afraid to do so.
Yup. Don't forget Northern Ireland. They went heavy handed there. Did it work? Nope.
Oh god, the world is coming apart at the seams.
Nowadays, everything is "terrorism". It's funny, because before Bush, nobody knew that word. Nobody ever talked about such a thing. It was something that was talked about maybe once in every 5 years. Nowadays, you can't read the news 1 single day without something being labeled "terrorism". Yesterday, it was the Ukrainian gov't calling the people in the tents "terrorists".
It's become really easy to strike people down.
Are you shitting me? Do you perhaps not realise the UK was bombed by the IRA for many many years? That 5 letter bombs were sent only the other week?
Oh right, Americans didn't talk about terrorism, therefore it didn't exist.
Gotcha.
And no one really actually cared about it that much.
Now it's a label for every crime. "The defendant is a terrorist unit proven otherwise".
The rest apparently got so little media attention that I either didn't notice them or have forgotten all about it.
Of course that was well past the peak of the bombings, but it seems like a good illustration of how much of a "meh" thing it actually was.
Suddenly 9/11 and everything any government in the world does not sanctify is labelled terrorism, and adequate action as demonstrated by the US is required. Break a window during protest: terrorism, complain loudly about stuff: suspected terrorist.
You cannot deny that since 9/11 lot of freedom have been given up in the name of fighting terrorism ? How is it that Spain/UK with active terrorist movement did not have those laws before ? How is it that we are dead scarred of this "muslim terrorist leaving in a cave in Afganistan/Syria/Irak/ next target", but we were fine living next-door to our homemade ones ?
Long before 9/11, I travelled with bottle of wine from spain to the uk and bottle of whisky to spain from the uk. Both when the IRA and ETA were active. Nowadays, it is not possible in case some terr'ist muslim (sorry no racism, but that's the current media scapegoat) want to "blow our freedom away".
They (the UK) did. They had the Prevention of Terrorism Acts in the 1980s. They had interment without trial. They had aggressive police on the streets. They had police shooting at protesters. They had the head of government (Thatcher) saying "We don't negotiate with terrorists". They had secret service spying on people of the wrong ethnicity.
I remember going to Northern Ireland in the 90s and being questioned by military with machine guns at the border. These things did exist.
It's also worth pointing out that the US not only ignored IRA terrorism but in places actually supported it: http://www.rawstory.com/rs/2013/06/12/glenn-greenwald-slams-...
Back To The Future is my favorite example of the pre-90s perception of terrorists - gullible, ambitious beyond their means, a comical mix of bloodthirsty and inept, and only really dangerous if you stand still right in front of one with your hands in the air.
I think public perception started to shift well before 9/11, with 1995 being a critical turning point with the one-two punch of Oklahoma City and the capture of the Unabomber.
This hasn't changed. Mandela was once (stupidly) thought a terrorist by the current British prime minister. People's definition of terrorism constantly changes. I'm sure there are many people in the Middle East that consider the US a terrorist. It's a ridiculous classification as it's far too vague.
Edit: does the person who down voted this feel like explaining why? I don't see how it doesn't add to the conversation.
The "Hang Nelson Mandela" material was created by a group, which Cameron was not involved with, within the Federation of Conservative Students.
Disclosure: I'm not a Conservative supporter. I dislike what Cameron is currently doing and loathe Thatcher.
[1] http://www.independent.co.uk/news/uk/politics/cameron-we-wer...
[2] http://www.newstatesman.com/media-mole/2013/12/twitter-fact-...
All warfare seems to fit under this definition. Commonly explicitly added qualifiers are "against civilians" or "by non-state actors". Another implicit one is "by people the speaker doesn't like".
There were various terrorist operations in the 80ies that were in the news. I would find it probable that the word is more used/abused these days, but the statement above is factually incorrect.
[1] https://en.wikipedia.org/wiki/Prevention_of_Terrorism_Acts
Except for the IRA in the UK. You really need to read up on your modern UK history
bush just happened to make it more trendy. I hate the guy, but let's not contribute a word to his legacy.
Someone else already mentioned it but living in the UK, the IRA (and UDF) was something that was mentioned DAILY.