David Miranda: Remember his name

Even if it was legal, that doesn’t make it right.

Our 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 (pdf), 10.7). Most of them self-described as ethnic minorities (2013 report, p98).

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.

This post originally appeared on and is reposted here with the author's permission

David Miranda appearing on BBC News.

Adam Wagner is a barrister at 1 Crown Office Row chambers and editor of UK Human Rights Blog

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Tetris and sleep deprivation: how we can help emergency workers cope with trauma

First responders are at serious risk of developing PTSD during events like the Paris attacks. 

Some people seem able to deal with anything. They save a stranger from bleeding out in a bombed restaurant, protect passers-by from heavily armed gunmen, pull dead and dying people out of collapsed buildings, and they keep going because it is their job. These people are first responders.

When trauma goes on for days, as it has recently in Paris, however, the odds of them bouncing back from the violence, death and injury they are witnessing rapidly diminishes. They are at greater risk of developing a severe stress reaction known as post-traumatic stress disorder (PTSD). One study found that the worldwide rate of PTSD among first responders is 10 per cent, much higher than the 3.5 per cent rate among those not involved in rescue work.

Tetris to the rescue

So how best to address the problem? Research is in its infancy, but there are some promising studies. Emily Holmes’ group at the University of Cambridge has been looking at the benefits of playing Tetris, a video game, after a traumatic experience. The idea is that this could block the consolidation of traumatic memories so they don’t “flash back” later on.

For the study, her team first traumatised people by showing them distressing footage from public safety videos. The next day they invited them back into the lab to reactivate the memories with still images taken from the videos. One group then played Tetris for 12 minutes while the other sat quietly. Over the following week, the group who played Tetris had about 50 per cent fewer unwanted memories from the films compared to the group who didn’t.

The team concluded that playing Tetris helped individuals because it soaks up their visual processing capacity, making it harder for the brain to consolidate the visual parts of a traumatic memory.

Since it takes about six hours for the brain to cement a memory, the key is to play the game soon after trauma or within six hours of re-activating the traumatic memory. How long the helpful effects of playing Tetris will last and whether it will translate into helping people after real-life trauma is still unknown.

Talking it through

Other techniques, such as “updating”, taken from a highly-effective talking treatment for PTSD, may be more practical and easier to implement.

Like a detective, updating is a technique that focuses on finding new information and linking it to the case, the past memory. This is necessary because when the brain and body are in survival mode during trauma, the mind finds it difficult to encode all the relevant facts. Often key pieces of information that could make the memory less traumatic are lost. Updating links new information to someone’s memory of their trauma to make it less upsetting.

But can updating help to reduce unwanted memories after trauma?

We carried out a study, published in PLOS ONE, in which we traumatised people by showing them terrifying films of humans and animals in distress. We then divided our participants into three groups. One group watched the films again but were given new information about how long people suffered and whether or not they lived or died – essentially, they were updated. The second group watched the same films again but without the new information. And the third group watched films of humans and animals who were not in distress. The updated group had fewer traumatic memories and PTSD symptoms than the other two groups.

Updating is now being used by some UK emergency services. First responders will gather after critical incidents and update their memories of what happened before they go home.

Sleep deprivation

There are other techniques that may be helpful. One study found that depriving people of sleep may be useful in the aftermath of trauma.

But the same study found that a week after the trauma, people who had been deprived of sleep had the same number of unwanted memories as people who had slept well afterwards. Consequently, it remains unclear whether there would be any long-lasting benefits using this method. There are, however, certainly health risks linked to lack of sleep.

Still looking for a solution

To develop preventative interventions, we need to study newly-recruited emergency workers who haven’t yet suffered on-the-job trauma and follow them over time, spotting which “coping styles”, present before trauma, may predict their reactions afterwards.

For example, some people naturally react to stressful life events by dwelling on them, thinking about why they happened for hours on end. This strategy, called rumination, has been linked to PTSD in people who survived car crashes.

If rumination predicts PTSD in first responders, then preventative interventions could train people to spot when they are dwelling on an event and refocus their attention to the task at hand.

When we have identified which factors heighten emergency workers’ risk of developing PTSD, programmes can be developed to target those vulnerabilities. Only then can an intervention, directed at first responders most at risk of developing PTSD, properly protect them in their line of work.

The Conversation

Jennifer Wild is a Senior Research Fellow in Clinical Psychology at the University of Oxford

This article was originally published on The Conversation. Read the original article.