Why the detention of Glenn Greenwald’s husband wasn’t an “abuse” of the Terrorism Act

This post was written by Owen on August 19, 2013
Posted Under: Civil Liberties

So here’s an interesting thing. I’m sure I’m not going to be the first person to point it out, but it hasn’t been given a lot of coverage that I’ve seen. You know that “anti-terrorist” legislation that our government uses to detain the partners of journalists who do things it doesn’t like? You’d think that the law in question would be one of those rushed, ambiguously-worded bills passed in a bout of post-September-11th hysteria, wouldn’t you? After all, you remember what it was like; feelings running high, serious-looking people on every TV screen solemnly telling us that the Rules Had Changed – in that climate it’s easy to see how hastily-written legislation could have the odd loophole that’s open to abuse, right?

It’s certainly true that there’s no shortage of laws which do fit that description, but actually the law under which David Miranda was detained wasn’t one of them. Miranda was detained under the Terrorism Act of 2000, which predated the World Trade Centre and Pentagon attacks by well over a year. And there really isn’t anything remotely ambiguous in the wording at all. Here’s Schedule 7, Paragraph 2, of the Act:

Power to stop, question and detain

2

(1)   An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

(2)   This paragraph applies to a person if—(a)he is at a port or in the border area, and(b)the examining officer believes that the person’s presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland [F1 or his travelling by air within Great Britain or within Northern Ireland].

(3)   This paragraph also applies to a person on a ship or aircraft which has arrived [F2 at any place in Great Britain or Northern Ireland (whether from within or outside Great Britain or Northern Ireland).]

(4)  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). [My emphasis]

In case you’re wondering why this is significant, section 40(1)(b) of the Act is a definition of the term “terrorist”. So point 4 of the part I quoted above actually explicitly says that police or border guards can detain and interrogate absolutely anyone they like under these laws, whether or not they have any reason at all to believe they might be a terrorist. What happened to David Miranda can’t be attributed to the law being misinterpreted or applied inappropriately, as some seem to be claiming. On the contrary, it seems to accord exactly with both the letter and the spirit of the law. And the Blair government didn’t even try and justify it by appealing to the threat of any bin Laden-style terrorist bogeymen either – Wikipedia states that the Bill was passed as “a precaution measure”.

But remember – we’re better than the terrorists, because freedom! Or something.

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Reader Comments

JWA

Doesn’t this imply that the questioning still needs to be directed towards discovering whether the detained person is a terrorist (under 7:1)? If they use the power to question the detained person about non-terrorist related issues than surely it is being misused?

ie, They can detain your granny for 9 hours and repetitively ask her whether she’s planning to blow Halfords but the moment they ask her if she’s dodged her TV licence – than they are misusing the act?

#1 
Written By JWA on August 20th, 2013 @ 12:50 am
JWA

[2am rambling but...]

Lets imagine all this goes to court – the police will presumably have to defend themselves on the basis that their questioning was trying to discover a terrorist link. The questions they’ve asked (and actions taken) will then have to be shown to be driving towards ascertaining that Miranda is a terrorist according to 40(1)(b). The explanation for how the questions used do this – will presumably rest on ‘secret information the police have’. These explanations will I assume be reviewed judicially. The question then is can the judge report his/her full decision or will it be settled in a secret court?

Worst case scenario: If the judge decides the police were in the right – and keeps explanations for his judgement secret in the interests of security – would equal open season for these powers to be abused non-stop.

[Danger is that this is a hard case - Greenwald has been reckless - using Miranda to transport info in the past - and touting documents which he might not intend to use for terrorism, but that a 'terrorist' could - and which he has said are more damaging than the ones already printed. Facing some patrician judge he might lose.]

#2 
Written By JWA on August 20th, 2013 @ 2:38 am
JWA

I’m wrong, you’re right (slow on the uptake – good article).

#3 
Written By JWA on August 20th, 2013 @ 11:15 am

I don’t think you’re wrong at all – from that Jack of Kent post on my FB wall your first comment is absolutely dead on – the questioning does need to be directed to finding out if the detainee is a terrorist, and from what Miranda’s said that may not have been adhered to in his case. However, it strikes me that the Police/Border Authority might be able to argue that Miranda (and Greenwald and Snowden) could be deemed to be terrorists under section 58 of the Act: http://www.legislation.gov.uk/ukpga/2000/11/section/58

So on balance I think I stand by my claim that the problem is with the law itself.

#4 
Written By Owen on August 20th, 2013 @ 7:48 pm
JWA

Well except that at that point – presumably they would then have been duty bound to charge and arrest him? (It wouldn’t make a lot of sense for them to say ‘yes we felt he was a terrorist but then we didn’t arrest him.’) The fact there’s no arrest – suggests they were fishing. That they held him (pointlessly) for the full time available – suggests it was personal & malicious.
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I think one of the commentators on Jack of Kent has it right when he points out:
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“the key lies in the definition of “terrorism” under the Terrorism Act of 2000.
(2) Action falls within this section if it:
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
These definitions are odious.
The British government could argue that publishing documents further endangers the safety of the public by informing actual Terrorists on how to avoid being monitored and thus be more likely to succeed in their plots.
Second, the British Government could define NSA’s Prism and the GCHQ equivalent as electronic systems, which the publication of further documents might disrupt their activities, as they are meant to be secret.”
*
The next commentator gets to the heart of what’s at stake as a consequence:
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Miranda may protest his innocence of knowledge of the contents, and he may in fact have been unaware of the specific nature of the information he was carrying, but it seems reasonable for the police to believe him aware of what he was going in the generality (and to disbelieve any denial). More to the point, his awareness of whether he was “concerned in the commission, preparation or instigation of acts of terrorism” isn’t relevant, only the fact of whether he was or not.
This then raises a crucial question for the police: do they consider that carrying those documents to the Guardian for publication constitutes commission, preparation or instigation of acts of terrorism?
If it is, the questioning was lawful. But equally, if the questioning was lawful, it seems tantamount to saying the Guardian is engaged in a terrorist campaign.
*
*
All of this leads me to feel this is one of those situations where the law gets in the way of how civil society and political discussion should work – this is my big beef with the whole affair (and incidentally my regular beef with the genuflection to our legal system).
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Here is a good post on locutionary distortions (implicature and entailment):
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http://www.lrb.co.uk/blog/2013/08/15/glen-newey/what-does-literally-literally-mean/
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Newey makes the point in comments underneath-
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“One consequence of the Gricean insistence on strict entailment is that those apprised of the distinctions – lawyers and politicians prominent among them – can hide behind formulations that are sophistical so as to be able to rebut charges of mendacity. This trades short-term gain for long-run depreciation in the currency of political debate, and you find politicians saying things like, ‘It all depends on what the meaning of “is” is.’”
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This arrest is a great example of a law being read to the letter and not according (arguably) to the spirit in which it was created. Not many of our dimwitted politicians voting for a law intended to stop terrorists getting on aircraft, would have imagined it to be used to stop journalists writing stories the plods don’t like. (Spirit of the law in the broadest sense is not on the government’s side here.)
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If the government / police were really sure of their ground they would arrest Miranda. Instead they found (or thought they found) a loophole to fish in. Arresting him may be a step too far at the present time, but they’re willing to push the envelope. This is a more real threat than Leveson to serious journalism.
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This is why I find the law – interesting but also irritating. We end up arguing about the ‘spirit of the law’ – according to multiple readings of what a terrorist or terorism is. Terrorist of course being sufficiently poorly defined that it could include journalists (who would usually have a defence under media law for holding illegally sourced material) and pretty much anyone else who holds anything the police or secret services consider ‘damaging’.
*
Judges then get to have their fun weighing up spirit of the law as it was intended – versus ‘literal’ law as written. Neither approach is perfectly satisfactory because in this kind of wrangle the law as practiced doesn’t seem to have much of a concept of justice. It examines an incident and tries to decide upon it according to this or that law – it doesn’t look at the incident and try to determine what it means, and consequently whether it is good or bad. (In other words I’d rather people listened to philosophers than judges). Judges favour consistency – but because of this they can and do endorse bad actions and abuses of power. (Although they might argue such consistency has value in and of itself). My bigger point is that law isn’t what holds power to account – it’s society more generally & (theoretically) democracy especially – that should do this. A society with too much respect for the practice of law, and for the law to fix things – can be just dangerous as a society which has too little. And that’s where I get annoyed – as a society we do have too much respect for the law and leave it to decide on matters, which we should be arguing about as citizens. (Arguing to get the just solution, not playing language games with poorly drafted legislation).
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So after going around the houses – I now hope people will loudly say – this kind of intimidation is uncivilized, disproportionate, an abuse of power etc, etc and that Theresa May should resign. (In fact she gave a great example of politician’s entailment by saying she knew it was a police operation and it was their call – without pointing out that as home secretary had she wanted to stop it she could have).
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Just asking for the law to be rewritten misses the point that it has been used maliciously. Newey again:
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“It seems to me that deceptive intent is what matters morally, and clearly that intent can be present despite the absence of mendacity… which (as often with politicians) is concocted precisely to dodge that charge.”
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I owe a debt to Louise Mensch however – watching her inept efforts to defend the arrest, while smearing everyone in sight – finally caused the penny to drop. All the above is also incidentally why I dropped out of law school in favour of writing stories.

#5 
Written By JWA on August 20th, 2013 @ 11:33 pm

Well, it certainly looks at the moment like Theresa May is trying to appeal to something along the lines of section 58. Presumably their argument won’t be that the Guardian (or Greenwald or Miranda) are actively involved in terrorism, just that the information they obtained from Snowden could aid terrorists. Section 58 doesn’t say you have to be involved in terrorism yourself, as far as I can see. And the MPs who voted for the Act might not have anticipated or wanted it to be used in this way (though most of them were probably just careerist Blairite drones who tried not to have opinions in case it upset the whips), but my basic point is that looking at the wording it seems eminently likely that the people who drafted the law knew exactly what they were doing – there’s a hell of a lot of room for arbitrary detention in that wording, and it wouldn’t have been hard to avoid (say by leaving out paragraph 2 which I quote above).

Definitely very much agree with you about the importance of not getting too hung up on the law at the expense of wider questions about the response of civil society though.

#6 
Written By Owen on August 21st, 2013 @ 6:45 pm
JWA

Yes – you’re right – law as written appears to rule out any distinction between bad intent and capacity (or absence of intent) to commit terrorism.
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I still have less of a problem with the arbitrary detention part – provided it is not used maliciously.
*
Trying to get into the head of the legislators – I presume paragraph 2 exists to act as a random stop and search power (arguably sensible in an airport) – I imagine the 9 hour maximum length is a provision for practical reasons like sourcing a translator, or trying to work out what exactly someone is carrying (on the rare occasion something turns up that needs explaining) – and (again) I assume the lack of a requirement of legal representation is practical when you’re pulling someone over for 2 minutes (or you’re faced by an ongoing emergency).
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It is an arbitrary power in both senses of the word. And it may need provisions against abuse. But I think the real issue remains within the definition of terrorism.
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Without arresting anyone though – the use of this loophole in a sense does the rest of us a service – it shows that the government’s intentions are mendacious. That it has been used to either intimidate people, or steal what they have for a week, or both.
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If there was never any intention of charging Miranda – than the government may have to do some explaining as to why they’ve taken his property:
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58:11(2)An examining officer may detain the thing—
*
(a)for the purpose of examination, for a period not exceeding seven days beginning with the day on which the detention commences,
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(b)while he believes that it may be needed for use as evidence in criminal proceedings,
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If they don’t charge Miranda on the basis of the files they’ taken than implicitly they can’t regard them as having terrorist potential. And if that’s the case – …maybe Snowden could seek asylum in the UK?

#7 
Written By JWA on August 21st, 2013 @ 9:40 pm
JWA

(the last point is doolally – I suppose it would just mean they wouldn’t arrest him as a terrorist here – provided they granted him the same ‘reasonable’ intent defence. They’d still deport him. Boo)

#8 
Written By JWA on August 21st, 2013 @ 9:46 pm

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