Ruling in the Miranda Case - David Miranda, That Is

A British court found that the detention of David Miranda was legal under Britain's Terrorism Act, but that the law itself is a violation of human rights, not providing sufficient protections for journalists, and needs to be repealed.

If you've forgotten, Miranda is Glenn Greenwald's partner who was held at Heathrow airport for nine hours and questioned without a lawyer back in 2013 when Greenwald was in Hong Kong with Edward Snowden.  Miranda sued.

The court issued a declaration of incompatibility, which leaves it to Parliament to decide how to change the law so that it is compatible with Article 10 of the European Convention on Human Rights Act, which protects freedom of expression.

  HuffPo

I'm wondering how the law was conceived in the first place. Well, actually, not the law, but the provision that allows people to be held for nine hours. Why nine?

I'm also wondering what they will do to harass and intimidate if they don't have that law to use. Because they will do something.

Another Cartoonist Finds the Nerve

High Court Ruling on Miranda Suit

Lawyers acting for the journalist's partner held for nine hours under anti-terror laws have won an order to stop the Government and police "inspecting, copying or sharing" data seized from him - except "for the purpose of protecting national security".

David Miranda's legal team were granted the order, which will run until Friday 30 August.

The High Court will then consider further Mr Miranda's application for an interim injunction to stop examination "until the legality of that seizure has been determined by this court".

  UK Independent

The High Court said the authorities could examine the seized material for the defence of national security and also to investigate whether Mr Miranda, 28, is a person who is or has been concerned with the commission, preparation or instigation of acts of terrorism.

  BBC

Jonathan Laidlaw, a lawyer representing the Metropolitan Police, told the court a criminal investigation has been launched following inspection of the material seized from Miranda.

[...]

The Metropolitan Police have called what happened "legally and procedurally sound" and said it came after "a detailed decision-making process."

  CNN

Which involved discussion with US authorities.

Kind of a wash, isn't it?  Authorities can examine the property for the purpose of national security only but they may examine it to determine whether Mr. Miranda contained a threat to national security.  Or is that a Catch-22?

The Guardian Incident

[S]ince this is 2013, not 1958, destroying one set of a newspaper's documents doesn't destroy them all, and since the Guardian has multiple people around the world with copies, they achieved nothing but making themselves look incompetently oppressive.

But conveying a thuggish message of intimidation is exactly what the UK and their superiors in the US national security state are attempting to accomplish with virtually everything they are now doing in this matter.

[...]

[T]he US and the UK governments go around the world threatening people all the time. It's their modus operandi. They imprison whistleblowers. They try to criminalize journalism. They threatened the Guardian with prior restraint and then forced the paper to physically smash their hard drives in a basement. They detained my partner under a terrorism law, repeatedly threatened to arrest him, and forced him to give them his passwords to all sorts of invasive personal information - behavior that even one of the authors of that terrorism law says is illegal, which the Committee for the Protection of Journalists said yesterday is just "the latest example in a disturbing record of official harassment of the Guardian over its coverage of the Snowden leaks", and which Human Rights Watch says was "intended to intimidate Greenwald and other journalists who report on surveillance abuses." And that's just their recent behavior with regard to press freedoms: it's to say nothing of all the invasions, bombings, renderings, torture and secrecy abuses for which that bullying, vengeful duo is responsible over the last decade.

  Glenn Greenwald

Including an attack on a hotel in Iraq where journalists were staying, resulting in the deaths of several journalists, and a direct attack on an al Jazeera office resulting in the death of a cameraman.

If the goal of the UK in detaining my partner was - as it now claims - to protect the public from terrorism by taking documents they suspected he had (and why would they have suspected that?), that would have taken 9 minutes, not 9 hours. Identically, the UK knew full well that forcing the Guardian UK to destroy its hard drives would accomplish nothing in terms of stopping the reporting: as the Guardian told them, there are multiple other copies around the world. The sole purpose of all of that, manifestly, is to intimidate.

And just so you know, don’t discuss your secrets in a room with windows or plastic cups.

The same two senior officials who had visited the Guardian the previous month returned with the message that patience with the newspaper's reporting was wearing out.

They expressed fears that foreign governments, in particular Russia or China, could hack into the Guardian's IT network. But the Guardian explained the security surrounding the documents, which were held in isolation and not stored on any Guardian system.

However, in a subsequent meeting, an intelligence agency expert argued that the material was still vulnerable. He said by way of example that if there was a plastic cup in the room where the work was being carried out foreign agents could train a laser on it to pick up the vibrations of what was being said. Vibrations on windows could similarly be monitored remotely by laser.

[...]

The Guardian's lawyers believed the government might either seek an injunction under the law of confidence, a catch-all statute that covers any unauthorised possession of confidential material, or start criminal proceedings under the Official Secrets Act.

Either brought with it the risk that the Guardian's reporting would be frozen everywhere and that the newspaper would be forced to hand over material.

"I explained to British authorities that there were other copies in America and Brazil so they wouldn't be achieving anything," Rusbridger said. "But once it was obvious that they would be going to law I preferred to destroy our copy rather than hand it back to them or allow the courts to freeze our reporting."

Any such surrender would have represented a betrayal of the source, Edward Snowden, Rusbridger believed. The files could ultimately have been used in the American whistleblower's prosecution.

[...]

Furthermore the computer records could be analysed forensically to yield information on which journalists had seen and worked with which files.

Rusbridger took the decision that if the government was determined to stop UK-based reporting on the Snowden files, the best option was destroy the London copy and to continue to edit and report from America and Brazil. Journalists in America are protected by the first amendment, guaranteeing free speech.

  Guardian

We still have the First Amendment? It’s on its deathbed if we do. We knew it was in bad shape when the country adopted “Free Speech Zones” during the reign of George the W.

Interview with Guardian Editor on Miranda and Destruction of Documents

If the video below doesn't work for you, go directly to the Guardian link: http://www.theguardian.com/world/video/2013/aug/20/alan-rusbridger-miranda-snowden-nsa-gchq-video

Make no mistake: essentially forcing a newspaper’s editor into exile over a report it doesn’t like sounds like a story from the 18th century reign of King George III, not of a supposed 21st century democracy.

While this episode exposes despicable and ignorant actions taken by the UK government—again, actions that are normally reserved for the worst of authoritarian regimes—we should also take notice of journalistic bravery on the part of Rusbridger and his Guardian staff.

Rusbridger has had the courage to keep publishing in the face of government pressure, prior restraint, and possibly the financial stability of his newspaper. He is commendably putting his newspaper at risk to get the truth to the world’s citizens. We need more editors like him.

  Freedom of the Press Foundation

David Miranda's Lawyers Respond

You saw this coming…

Lawyers for the partner of the Guardian journalist who exposed mass email surveillance have written to home secretary Theresa May and the head of the Metropolitan police warning them that they are set to take legal action over what they say amounted to his "unlawful" detention at Heathrow airport under anti-terror laws.

[...]

His lawyers at the London firm Bindmans are seeking an official undertaking that there will be "no inspection, copying, disclosure, transfer, distribution or interference, in any way with our client's data".

But they say if there has already been an inspection of his laptop and other equipment it should not be disclosed to any third party, domestic or foreign and should be kept secure pending the outcome of the legal action.

  Guardian

That gives me pause, because until just this moment I had not thought of the possibility of agents of the US, UK, or other allied governments passing some unique piece of material from a confiscated device to an enemy of those countries and creating the impression that the person to whom the device belongs is trading secrets.

The letter says the decision to detain Miranda "amounted to a frustration of the legislative policy and objects of the Terrorism Act 2000" and was for "an improper purpose and was therefore unlawful".

Bindmans say if the undertakings are not given by Tuesday afternoon they will have no option but to seek an urgent interim injunction in the high court.

The lawyers say they will also be seeking a "quashing order" confirming that his detention was "unlawful" and a mandatory order that all data seized is returned and copies destroyed.

[...]

Bindmans say the police used the anti-terror laws in order to have "deliberately bypassed" the normal statutory procedures for seeking confidential journalistic material such as court orders under the Police and Criminal Evidence Act 1984.

Using Pace police can get permission to search premises and seize property but some classes of material are protected, including journalistic material.

If You Are Innocent...

The UK (US) is making Eward Snowden’s case for him.

We are going to need a new international law (which we can call Miranda’s Rights) that prevents this sort of thing. Good idea, but on second thought, we are under the rule of a lawless government, so it probably wouldn’t make any difference.

In an outrageous and unacceptable attack on press freedom, Guardian journalist Glenn Greenwald’s partner, David Miranda, was detained for almost nine hours at Heathrow airport in London earlier today under section 7 of the UK’s pernicious Terrorism Act. Miranda was returning to his home in Brazil after a week-long visit with documentarian Laura Poitras. Miranda, whose flights were paid for by the Guardian, was reportedly bringing important documents back to Greenwald on USB thumbdrives.

  Freedom of the Press Foundation

Which were confiscated. Presumably they are highly encrypted.

Investigating acts of journalism under “terrorism” laws and detaining family members of reporters are hallmarks of authoritarian regimes.

[...]

Just like the Patriot Act and FISA Amendments Act, which have been used by the NSA to create mass domestic surveillance databases of millions of innocent people, the “terrorism” law in the UK declares the “power to stop and question may be exercised without suspicion of involvement in terrorism.”

[...]

As Andrew Sullivan wrote, “So any journalist passing through London’s Heathrow has now been warned: do not take any documents with you. Britain is now a police state when it comes to journalists, just like Russia is.”

The partner of journalist Glenn Greenwald was held at Heathrow airport under the UK Terrorism Act for the maximum time allowed before pressing charges. Amnesty International dubbed the move an unwarranted revenge after Greenwald revealed NSA spy programs.

David Miranda was passing through London en route from Berlin to Rio de Janeiro, where he lives with Greenwald - the Guardian journalist who in a series of articles helped Edward Snowden to reveal the scale of the National Security Agency’s mass surveillance programs.

Miranda was detained for questioning by security officers at Heathrow around 8am local time, under Schedule 7 of the Terrorism Act 2000. Officials held him for almost nine hours without pressing any charges, which is the maximum amount of time that a person is allowed to be held under the controversial law.

Officers released him after confiscating all of his electronic equipment. According to the Guardian, officers confiscated Miranda’s mobile phone, laptop, camera, memory sticks, DVDs, and even his gaming console.

[...]

The Brazilian government released a statement expressing grave concern over the episode. It stated that the measure was unjustified “since it involves an individual against whom there are no charges that can legitimate the use of that legislation.”

“The Brazilian government expects that incidents such as the one that happened to the Brazilian citizen today do not repeat,” the statement reads.

Under controversial Schedule 7 of the Terrorism Act 2000, border officers are allowed to detain any person entering or leaving the UK for questioning for up to nine hours and confiscate personal belongings for seven days for counter-terrorism purposes. Legal advice can be requested at a person’s own expense. However, the examination is not delayed pending a lawyer’s arrival and refusal to answer questions might be considered an offense and lead to arrest. Out of 69,109 people questioned between April 2011 and March 2012, only about 42 were detained for more than six hours.

Meanwhile, Amnesty International has stated that Miranda was a clear “victim of unwarranted revenge tactics.”

  RT

And I’m expecting Mr. Greenwald will have something more to say, but here's to date:

According to a document published by the UK government about Schedule 7 of the Terrorism Act, "fewer than 3 people in every 10,000 are examined as they pass through UK borders" (David was not entering the UK but only transiting through to Rio). Moreover, "most examinations, over 97%, last under an hour." An appendix to that document states that only .06% of all people detained are kept for more than 6 hours.

The stated purpose of this law, as the name suggests, is to question people about terrorism. The detention power, claims the UK government, is used "to determine whether that person is or has been involved in the commission, preparation or instigation of acts of terrorism."

[...]

Instead, they spent their time interrogating him about the NSA reporting which Laura Poitras, the Guardian and I are doing, as well the content of the electronic products he was carrying. They completely abused their own terrorism law for reasons having nothing whatsoever to do with terrorism: a potent reminder of how often governments lie when they claim that they need powers to stop "the terrorists", and how dangerous it is to vest unchecked power with political officials in its name.

[...]

This was obviously designed to send a message of intimidation to those of us working journalistically on reporting on the NSA and its British counterpart, the GCHQ.

[...]

This is obviously a rather profound escalation of their attacks on the news-gathering process and journalism. It's bad enough to prosecute and imprison sources. It's worse still to imprison journalists who report the truth. But to start detaining the family members and loved ones of journalists is simply despotic. Even the Mafia had ethical rules against targeting the family members of people they felt threatened by. But the UK puppets and their owners in the US national security state obviously are unconstrained by even those minimal scruples.

If the UK and US governments believe that tactics like this are going to deter or intimidate us in any way from continuing to report aggressively on what these documents reveal, they are beyond deluded.

[...]

[T]he Guardian's lawyer was able to speak with him immediately upon his release, and told me that, while a bit distressed from the ordeal, he was in very good spirits and quite defiant, and he asked the lawyer to convey that defiance to me. I already share it, as I'm certain US and UK authorities will soon see.

  Glenn Greenwald

[Greenwald] told the BBC: "They never asked him about a single question at all about terrorism or anything relating to a terrorist organisation.

"They spent the entire day asking about the reporting I was doing and other Guardian journalists were doing on the NSA stories."

He said he would respond by writing reports "much more aggressively than before" and would publish "many more documents".

"I have lots of documents about the way the secret services operate in England. Now my focus will be there as well," he added.

  BBC

It is indeed an attack on the free press and raises the image of virtual hostage taking by the government. We usually associate the punishment of family members for dissidents or journalists with countries like Iran or China. However, it appears that our governments can not only engage in massive warrantless surveillance of its citizens but openly attacked loved ones without any fear of backlash.

[...]

My favorite part [of the Section 7 ruling used to justify such actions]: “An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).”

[...]

The actions taken against Miranda were intended to send a message to Greenwald and other journalists that their families will not be protected from repercussions in such controversies. Indeed, the crude tactics conveyed a menacing message that the government is not concerned with public outcry or any notion of checks on its actions. You will note that no one in Congress has demanded to know if American officials were involved in this abusive action. Scotland Yard refused to answer any questions beyond confirmed that Miranda was held in custody. The message to citizens seems clear: Challenge the government at your own peril . . . and that of your loved ones.

  Jonathan Turley

Bob Satchwell, of the Society of Editors, said the incident was "another example of the dangerous tendency" for authorities to "assume that journalists are bad when in fact they play an important part in any democracy."

He added: "Journalism may be embarrassing and annoying for governments but it is not terrorism."

Michelle Stanistreet, general secretary of the National Union of Journalists, added: "Journalists no longer feel safe exchanging even encrypted messages by email and now it seems they are not safe when they resort to face-to-face meetings."

  BBC

[British S]hadow home secretary, Yvette Cooper, called for an urgent investigation into the use of schedule 7 of the Terrorism Act 2000 to detain Miranda. Cooper said ministers must find out whether anti-terror laws had been misused after detention caused "considerable consternation".

  Guardian

It’s pretty obvious the laws have been “misused” unless, of course, the laws are actually not intended to combat terrorism. The laws are being used in this instance as a form of terror. And, notice: “after detention caused ‘considerable consternation.’” Had Mr. Miranda been a less public figure, no one would be talking about it at all.

[A] Downing Street [Number 10 - residence of the Prime Minister] spokesman added that police would judge whether they had exercised their powers proportionately. He said: "The government takes all necessary steps to protect the public from individuals who pose a threat to national security. Schedule 7, which was used in this case, forms an essential part of the UK's border security arrangements. But it is for the police to decide when it is necessary and proportionate to use these powers."

Well, that’s comforting, isn’t it?

No 10's position was directly contradicted by [Queen’s Councilor David] Anderson, who said: "This is an important power. But the question of whether it was proportionately used in any given case is not ultimately for the police.

"The police, I'm sure, do their best. But at the end of the day there is the Independent Police Complaints Commission, which can look into the exercise of this power, there are the courts and there is my function. I report to the home secretary and to parliament every year on how this power is being used and whether it is being used properly."

Davis also dismissed the Downing Street position. He said: "This is absolutely not solely an operational matter for the police. This relates directly to press freedom and directly to our adherence to the rule of law. I'm afraid you cannot shove this one under the carpet on the basis of national security."

[...]

The government is proposing, on the basis of a recommendation from Anderson, to reduce the maximum detention period from nine to six hours.

Oh, well, then. No worries. At any rate, a Queen’s Councilor has no more power in England than the Queen.

The innocent have nothing to fear? They do if they embarrass America and happen to visit British soil.

[...]

The hysteria of the "war on terror" is now corrupting every area of democratic government. It extends from the arbitrary selection of drone targets to the quasi-torture of suspects, the intrusion on personal data and the harassing of journalists' families. The disregard of statutory oversight – in Britain's case pathetically inadequate – is giving western governments many of the characteristics of the enemies they profess to oppose.

[...]

The detention at Heathrow on Sunday of the Brazilian David Miranda is the sort of treatment western politicians love to deplore in Putin's Russia or Ahmadinejad's Iran. His "offence" under the 2000 Terrorism Act was apparently to be the partner of a journalist, Glenn Greenwald, who had reported for the Guardian on material released by the American whistleblower, Edward Snowden

[...]

It is the airport equivalent of smashing into someone's flat, rifling through their drawers and stealing papers and documents. It is simple harassment and intimidation..

[...]

Greenwald himself is not known to have committed any offence, unless journalism is now a "terrorist" occupation in the eyes of British and American politicians. As for Miranda, his only offence seems to have been to be part of his family. Harassing the family of those who have upset authority is the most obscene form of state terrorism.

[...]

Schedule 7 of the Terrorism Act has been widely criticised for giving police broad powers under the guise of anti-terror legislation to stop and search individuals without prior authorisation or reasonable suspicion – setting it apart from other police powers.

Those stopped have no automatic right to legal advice and it is a criminal offence to refuse to co-operate with questioning under schedule 7, which critics say is a curtailment of the right to silence.

  The Guardian