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 ukhumanrightsblog.com 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

Reuters/New Statesman composite.
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When it comes to social media, we all have a responsibility to avoid sharing upsetting images

If Twitter is the new journalism, we are all editors – and responsible for treating our fellow humans with dignity.

“I wish I hadn’t seen that”, my colleague says from across the desk. It’s been an hour since the first reports came in of a shooting outside Parliament, and the news agency Reuters has started posting photographs of injured people, knocked down by the terrorist as he drove across Westminster Bridge.

In one, a brunette woman leans over a victim whose blood is beginning to stain the wet pavement. Lying on her back, she is framed by scattered postcards sold for tourists which have been knocked to the floor. She is clutching the arm of the woman helping her, but her eyes are staring dead into the photographer’s lens.

Another photograph – the one that my colleague is referring to – disturbs me even more: a man who has fallen (or been pushed?) off the bridge onto a stairwell. He is face down in a pool of blood, his left leg at an unnatural angle. It is impossible to tell if he is alive or not.

Briefly, before I scroll past, I wonder if someone, somewhere is seeing the same picture and experiencing a shock of recognition as they recognise their friend’s clothes.

And then there is one picture which I now cannot find on Twitter, but which, lying in bed last night, I could not stop thinking of: a woman’s legs extended from under the wheel of a bus, her skirt hiked up to show her underwear, her shoes missing.

We are a desk of journalists covering an attack on the Houses of Parliament, so I keep scrolling. It is only later, in an article by the Telegraph, that I learn a junior doctor has declared the woman dead.

Of course, the shock of seeing images like these is nothing compared to what war reporters, doctors or police go through on a regular basis. But a 2015 study at the University of Toronto found that extended exposure to violent or disturbing material can have a severe effect on journalists’ mental health.

The impact can be particularly confusing when one does not anticipate seeing violence.On social media, we increasingly encounter images this way: without warning and without a chance to steel ourselves. This is particularly a problem when it comes to members of the public, whose jobs don’t require them to look at shocking material but who can nevertheless be exposed to it just by virtue of using a social media network.

It is for this reason that, shortly after Reuters published their photographs of the Westminster victims, prominent journalists began posting asking their colleagues not to retweet them. Some protested the fact that Reuters had published them at all.

In today’s media landscape, news moves fast and social media faster. Where a picture editor would have previously had until their print deadline to decide which images to run, now photographers are able to send their work back to the office almost instantaneously, and editors must make a snap decision about what to release.

Deciding what images to use can be a difficult call – especially under pressure. On the one hand, there is the urge to not turn away, to bear witness to the full magnitude of what has happened, even if it is shocking and upsetting. On the other, there is the need to treat fellow human beings with dignity, and particularly to avoid, where possible, showing images of victims whose families have not yet been informed.

Social media makes this process even more difficult. Once released online, photographs of the Westminster attack were quickly saved and re-posted by private individuals, stripped of context or warning. One can choose not to follow the Reuters Pictures account, but one cannot necessarily avoid seeing an image once it is being retweeted, reposted and recycled by private accounts.

As the line between traditional news and social media blurs and we increasingly become participants in the news, as well as consumers of it, our sense of responsibility also shifts. On Twitter, we are our own editors, each charged with making sure we extend dignity to our fellow humans, even – especially – when the news is dramatic and fast-moving.

I was glad, this morning, to encounter fewer and fewer photographs – to not see the girl lying under the bus again. But at 3am last night, I thought about her, and about her family; about them knowing that journalists on desks across Britain had seen up their loved one’s skirt during the last moments of her life. It was, without putting too fine a point on it, no way to encounter a fellow human being.

Over the next few days, we will find out more about who the victims were. The media will release images of them in happier times, tell us about their jobs and careers and children – as is already happening with Keith Palmer, the policeman who we now know died on the Parliamentary Estate.

It is those images which I hope will be shared: not just as a way to resist fear, but as a way of acknowledging them as more than victims – of forging a different connection, based not in horror and voyeurism, but in a small moment of shared humanity.

There is no shame in being affected by graphic images, however removed one “ought” to feel. If you would like someone to talk to, Mind can provide details of local services.

The BBC also provides advice for those upset by the news.

Find out how to turn off Twitter image previews here.

Stephanie Boland is digital assistant at the New Statesman. She tweets at @stephanieboland