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

Getty
Show Hide image

Why Angela Merkel's comments about the UK and US shouldn't be given too much weight

The Chancellor's comments are aimed at a domestic and European audience, and she won't be abandoning Anglo-German relationships just yet.

Angela Merkel’s latest remarks do not seem well-judged but should not be given undue significance. Speaking as part of a rally in Munich for her sister party, the CSU, the German Chancellor claimed “we Europeans must really take our own fate into our hands”.

The comments should be read in the context of September's German elections and Merkel’s determination to restrain the fortune of her main political rival, Martin Schulz – obviously a strong Europhile and a committed Trump critic. Sigmar Gabriel - previously seen as a candidate to lead the left-wing SPD - has for some time been pressing for Germany and Europe to have “enough self-confidence” to stand up to Trump. He called for a “self-confident position, not just on behalf of us Germans but all Europeans”. Merkel is in part responding to this pressure.

Her words were well received by her audience. The beer hall crowd erupted into sustained applause. But taking an implicit pop at Donald Trump is hardly likely to be a divisive tactic at such a gathering. Criticising the UK post-Brexit and the US under Trump is the sort of virtue signalling guaranteed to ensure a good clap.

It’s not clear that the comments represent that much of a new departure, as she herself has since claimed. She said something similar earlier this year. In January, after the publication of Donald Trump’s interview with The Times and Bild, she said that “we Europeans have our fate in our own hands”.

At one level what Merkel said is something of a truism: in two year’s time Britain will no longer be directly deciding the fate of the EU. In future no British Prime Minister will attend the European Council, and British MEPs will leave the Parliament at the next round of European elections in 2019. Yet Merkel’s words “we Europeans”, conflate Europe and the EU, something she has previously rejected. Back in July last year, at a joint press conference with Theresa May, she said: “the UK after all remains part of Europe, if not of the Union”.

At the same press conference, Merkel also confirmed that the EU and the UK would need to continue to work together. At that time she even used the first person plural to include Britain, saying “we have certain missions also to fulfil with the rest of the world” – there the ‘we’ meant Britain and the EU, now the 'we' excludes Britain.

Her comments surely also mark a frustration born of difficulties at the G7 summit over climate change, but Britain and Germany agreed at the meeting in Sicily on the Paris Accord. More broadly, the next few months will be crucial for determining the future relationship between Britain and the EU. There will be many difficult negotiations ahead.

Merkel is widely expected to remain the German Chancellor after this autumn’s election. As the single most powerful individual in the EU27, she is the most crucial person in determining future relations between the UK and the EU. Indeed, to some extent, it was her intransigence during Cameron’s ‘renegotiation’ which precipitated Brexit itself. She also needs to watch with care growing irritation across the EU at the (perceived) extent of German influence and control over the institutions and direction of the European project. Recent reports in the Frankfurter Allgemeine Zeitung which suggested a Merkel plan for Jens Weidmann of the Bundesbank to succeed Mario Draghi at the ECB have not gone down well across southern Europe. For those critics, the hands controlling the fate of Europe are Merkel’s.

Brexit remains a crucial challenge for the EU. How the issue is handled will shape the future of the Union. Many across Europe’s capitals are worried that Brussels risks driving Britain further away than Brexit will require; they are worried lest the Channel becomes metaphorically wider and Britain turns its back on the continent. On the UK side, Theresa May has accepted the EU, and particularly Merkel’s, insistence, that there can be no cherry picking, and therefore she has committed to leaving the single market as well as the EU. May has offered a “deep and special” partnership and a comprehensive free trading arrangement. Merkel should welcome Britain’s clarity. She must work with new French President Emmanuel Macron and others to lead the EU towards a new relationship with Britain – a close partnership which protects free trade, security and the other forms of cooperation which benefit all Europeans.

Henry Newman is the director of Open Europe. He tweets @henrynewman.

0800 7318496