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

Carl Court/Getty
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To stop Jeremy Corbyn, I am giving my second preference to Andy Burnham

The big question is whether Andy Burnham or Yvette Cooper will face Jeremy in the final round of this election.

Voting is now underway in the Labour leadership election. There can be no doubt that Jeremy Corbyn is the frontrunner, but the race isn't over yet.

I know from conversations across the country that many voters still haven't made up their mind.

Some are drawn to Jeremy's promises of a new Jerusalem and endless spending, but worried that these endless promises, with no credibility, will only serve to lose us the next general election.

Others are certain that a Jeremy victory is really a win for Cameron and Osborne, but don't know who is the best alternative to vote for.

I am supporting Liz Kendall and will give her my first preference. But polling data is brutally clear: the big question is whether Andy Burnham or Yvette Cooper will face Jeremy in the final round of this election.

Andy can win. He can draw together support from across the party, motivated by his history of loyalty to the Labour movement, his passionate appeal for unity in fighting the Tories, and the findings of every poll of the general public in this campaign that he is best placed candidate to win the next general election.

Yvette, in contrast, would lose to Jeremy Corbyn and lose heavily. Evidence from data collected by all the campaigns – except (apparently) Yvette's own – shows this. All publicly available polling shows the same. If Andy drops out of the race, a large part of the broad coalition he attracts will vote for Jeremy. If Yvette is knocked out, her support firmly swings behind Andy.

We will all have our views about the different candidates, but the real choice for our country is between a Labour government and the ongoing rightwing agenda of the Tories.

I am in politics to make a real difference to the lives of my constituents. We are all in the Labour movement to get behind the beliefs that unite all in our party.

In the crucial choice we are making right now, I have no doubt that a vote for Jeremy would be the wrong choice – throwing away the next election, and with it hope for the next decade.

A vote for Yvette gets the same result – her defeat by Jeremy, and Jeremy's defeat to Cameron and Osborne.

In the crucial choice between Yvette and Andy, Andy will get my second preference so we can have the best hope of keeping the fight for our party alive, and the best hope for the future of our country too.

Tom Blenkinsop is the Labour MP for Middlesbrough South and East Cleveland