In remission: Miranda v Home Secretary
February 19, 2014 Leave a comment
Last August, when David Miranda, Glenn Greenwald’s husband, was arrested at Heathrow, the usual tense climate between investigative reporters and the concept of national security had climaxed. It was chilling. It launched an attack on journalism from the ceiling down – a crushing battle aimed at crippling, alienating, and eventually defeating those who acted in the name of public interest. Despite the little attention it seems to have received, nothing in 2013, in the world of civil rights at least, has sent such a message of fear and willingness to crush any democratic spirit than that moment Guardian journalists were made to destroy their own hard drives under the watchful eyes of GCHQ agents. One can’t help but wonder if this event was perceived as either mundane because we have internalised a surveillance state, or insignificant because the Guardian has been so demonized in the eyes of true blue patriots they deserved their fate. Both assumptions are wrong. Both assumptions should be proven wrong.
The Miranda case has been branded as a landmark situation that gave way and motive for a review of the infamous Schedule 7, outlining the powers of detention granted by the Terrorism Act 2000 (ATCSA). It’s a little more complex. Although the judges believed their application for appeal should be made on grounds that the case was fact-dependent, there are several matters of basic, fundamental principles questioned by the provisions of the ATCSA – and the fact the ATCSA is brought up against journalists, or those aiding journalists – that are not fact-dependent. Because the protection that should be awarded to members of the press has been suspended in the name of counter-terrorism, it begets the question of whether terrorism warrants such suspension, and whether the definitions in play in the ACTSA are applicable ones. Although a review of Schedule 7 is underway at Parliament, the recommendations all made for Schedule 7 review are dependant on the definition of terrorism – Article 40 (1) (b). An officer is granted discretion to assess a terror threat based on that definition, which is vague and circumstancial. It is the belief of many human rights lawyers having observed the increased use of ATCSA powers to persons usually protected from accusations of criminal activity associated to political dissent that it is 40 (1) (b) that can prove to be problematic.
The powers of detention extended to a terrorist suspect are dangerous. What is just as pervasive and dangerous is that said individual can be considered a terrorist suspect in the first place. Terrorism powers always should be granted better and bigger limitation based on the extensive reach they provide. Before the ruling was due, I had mentioned the following –
Sch 7 prov not uncommon in CT, but a) sections as 40(1)(b) need to be restricted b) subjected to judicial review c) ECHR compliant
— Sarah Kay (@K_isanasshole) February 19, 2014
Powers granted under Schedule 7, surveillance and improper purpose
Theresa May prided herself in the fall for accessing the demand of a review of Schedule 7, and this a whole year before the Miranda case. Back then, powers granted under Schedule 7 were already difficult to swallow. Although it took her a couple of paragraphs to re-affirm her commitment to the powers of the ATCSA, she threw a small bone at the human rights community and the basic democratic principles by announcing she would launch a public consultation with internal review. This review is prefaced by a solid 67% of respondents saying that, in 2012, Schedule 7 was already “unfair, too wide-ranging and should be curtailed”. The Home Office identified 12 specific questions ranging from detention to strip searches, delays of interrogation and respect of human rights. Of those 12 questions, the internal review concluded 7 needed amendments or modifications. All amendments in question were aimed at reducing the powers of detention, including the maximum time of detention without charge to go from 9 hours down to 6 hours.
David Miranda was detained for 9 hours.
In November 2013, David Anderson QC, the independent reviewer of UK anti-terrorism legislation, released his own report into Schedule 7. He did not conclude the detention powers, as they were, were excessive; he advised that the suspicion from officers that a given individual may be engaged in acts of terrorism fell within the ATCSA definition of terrorism to grant detention. This is a vicious circle. Per his conclusions,
(a) Detention be permitted only when a senior officer is satisfied that there are grounds for suspecting that the person appears to be a person falling within section 40 (1) (b) and that detention is necessary in order to assist in determining whether he is such a person.
Should this all be still confusing, let’s just give a senior officer discretional powers to extend said detention without charge:
(b) On periodic review, a detention may be extended only when a senior officer remains satisfied that there continue to be grounds for suspecting that the person appears to be a person falling within section 40 (1) (b) and that detention continues to be necessary in order to assist in determining whether he is such a person.
Now, although the internal review did recommend that specific, terrorism-related officers working in police stations or in ports be trained in quickly determine or assess the potential threat of an individual seeking entry or transit on UK territory, it appears that in the case of Miranda, the work was cut out for them by the Secret Service. Paragraph 9 of the Court ruling prove that Miranda was, in fact, under surveillance by both US and UK authorities and the Custom Border Protection Officers (CBPs) had been informed of his transit through Heathrow, and seriously advised to keep him and search him.
The Security Service (…) had undertaken an operation relating to Mr Snowden. They became aware of the claimant’s movements. At 0830 on Thursday 15 August 2013 they briefed Detective Superintendent Stokley of SO15, the Counter Terrorism Command in the Metropolitan Police, the second defendant. On Friday 16 August a Port Circulation Sheet (PCS), a form of document used to provide information to counter-terrorism officers, was issued by the Security Service to the Metropolitan Police and received at the National Ports Office at 2159. On page 2, against a box asking for confirmation “that the purpose of an examination will be to assist in making a determination about whether the person appears to be someone who is or has been concerned in the Commission, Preparation or Instigation of acts of terrorism (CPI)”, the Security Service had entered the words “Not Applicable”. On the same page this was stated:
“Intelligence indicates that MIRANDA is likely to be involved in espionage activity which has the potential to act against the interests of UK national security. We therefore wish to establish the nature of MIRANDA’s activity, assess the risk that MIRANDA poses to UK national security and mitigate as appropriate. We are requesting that you exercise your powers to carry out a ports stop against MIRANDA.”
Through paragraphs 10 and 11 of the decision comes a conversation between the Secret Service and the Met Police, that maybe further intelligence and information was necessary to use Schedule 7 at Heathrow to arrest Miranda. Later, the Secret Service would send a note – redacted, even in the ruling – claiming that Miranda was carrying material between Glenn Greenwald and Laura Poitras; that this material had been provided by Edward Snowden; that it contained information pertaining to GCHQ activities; and that it was damaging to UK national security. But the most important part, and what has caused the arrest, detention, interrogation, what would be at the core of Judge Laws’ ruling, is the Secret Service’s final PCS on August 17th, which reads with a sense of emergency, of fear, of confusion, of absolute necessity to stop the ongoing free-flow of material that was provided to Greenwald. It is frankly frantic, a little obsessive, and shows the absolute scare that public interest journalism creates in governments willingly engaging in wrongdoing:
“We assess that MIRANDA is knowingly carrying material, the release of which would endanger people’s lives. Additionally the disclosure, or threat of disclosure, is designed to influence the government, and is made for the purpose of promoting a political and ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under Schedule 7.”
Everything you ever needed to know about the UK national security principles and what actively constitutes national security is contained in that one PCS. If the ruling provided any sort of information – besides the acknowledgement that we will touch on later – is that the Secret Service is concerned with protecting national interests, government secrets, and that the furthering of the fundamental rights to press freedom constitutes an act of terrorism that falls within the purview of 40 (1) (b). Thanks to this PCS, we are now all clear on where the Kingdom stands.
Before the ruling emerged today, I wrote about public interest journalism and the fear-mongering propagated by both DNI James Clapper in the US and his lethal allies (*) – Theresa May, Andrew Parker, Chris Grayling, et al: all those endangered lives that Louise Mensch ranted on about do not exist. The only thing that’s endangered is the democratic career of the government officials who engaged into unconstitutional and unlawful actions against their citizens and foreign nationals in the name of the threat later revealed to be inexistent or a simple excuse. It is not because the Secret Service claims that Miranda falls within 40 (1) (b) that it effectively does, but the Met Police can’t contradict a PCS. In fact, officers may not even be thoroughly informed of the true motives behind the PCS (intelligence firewall).
Once again, one of the many pitfalls of Schedule 7 is that it exists in itself to ascertain whether the person falls under 40 (1) (b). There is no necessity for the officers to assess whether the person does before launching a Schedule 7 provision. In this case, due to the PCS, even with little knowledge of the content, there was a suspicion that Miranda would fall within Schedule 7 suspicion… but the PCS had led them on already.
Disproportionality of a Schedule 7 inspection
The question of proportionality can not exist in a vacuum; and it was Ryder’s submission as counsel for the claimant to refer to previous jurisprudence on what exactly should Schedule 7 be measured against in order to assess whether it was disproportionate or justified. In Bank Mellat v Her Majesty’s Treasury (2013), Lord Sumption, usually not one to rule in favor of human rights law or apprehend a counter-terrorism provision or in an international law context, decided (quoted in para. 39):
“The question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to that objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regards to these matters and the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.”
In the Miranda case, all of this can be easily assessed if we remove the idea of a national security protection from its political context and weigh a Schedule 7 provision against the husband of a journalist transiting through an airport. Is the objective of the Secret Service sufficiently important to limit the fundamental right of freedom of the press? Not if this press is acting in the public interest (strike one). Is the situation rationally connected to the objective? The increasing issue of national security not in protection of citizenry or territorial integrity but rather in protection of state interest does not constitute a rational motive, but rather a disproportionate use of force to protect the state (strike two). Could a less intrusive method have been used? In the case of WikiLeaks material and/or Snowden files, both revolutionary in the approach of whistleblowing in the digital age, I once argued that the Computer Misuse Act could have been useful without calling on to espionage or terrorism charges (strike three). Has a fair balance been struck? If the balance is achieved between the severity of the treatment granted to David Miranda and the protection of the United Kingdom, there is no such thing. It is a complex, heavily funded, internationally supported and executively connected state apparatus against a foreign national not even seeking entry or haven into the territory. Miranda was stuck in-between his departure city (Berlin) and his home (Rio de Janeiro). He was trapped. Is there a balance? Would Miranda alone – and the files he was carrying – bring down the Empire? (strike four).
In case one argues against my vision of Lord Sumption’s criteria number 1 and 2, on the national security imperative not protecting from an internal or international threat of violence against the integrity of the nation – that is, the state and the population, not the government – D/Supt Stokley’s testimony of his reaction upon receiving the PCS should clarify the situation of what the national security imperative actually meant in the Miranda case; it meant that it was handed out to an officer that simply did not make the distinction, and was not properly informed of the meaning of intelligence operations. The decision to call on a Schedule 7 detention was made by an agent of the Crown who was unaware of the activities of other agents of the Crown. I find this testimony disturbing in the light of the realities of GCHQ / PRISM activities (para. 37):
It appeared to me on the basis of what I knew about the stolen material, that it could be used to endanger life and cause harm to the members of the public… It was very clear in my mind that this action was not being executed as a means to prevent political embarrassment in the UK… I believed that the information in the claimant’s possession could potentially compromise the UK’s ability to monitor terrorist networks, posing a threat to the safety of the public… In particular, I considered that the release of information about PRISM technology into the public domain was of use to terrorists. My understanding of the technology from material in the public domain is that it enables security and intelligence services to monitor email traffic. Accordingly, I considered that if nothing was done to try to prevent further damaging disclosures which could directly benefit terrorists, the MPs and I personally would be failing in our obligation to prevent the loss of life, safeguard the public to (sic) prevent and detect crime.
Once again, it has been made abundantly clear at a Senate Intelligence Committee hearing in Washington, DC regarding NSA activities and requesting testimony from DNI James Clapper that, in fact, NSA activities barely amounted to truly specific counter-terrorism measures. An article in The Guardian on January 14, 2014 written by Spencer Ackerman quotes Michael Morrell, a former CIA deputy director:
Morrell added that the bulk collection of domestic phone data “has not played a significant role in preventing any terrorist attacks to this point,” further undercutting a major rationale offered by the NSA since the Guardian first revealed the bulk phone-data collection in June, thanks to leaks by Edward Snowden.
Just like Lord Justice Laws, I find no reason not to believe Stokley was genuine in giving this testimony. He just appears to not have been informed, or been purposely misinformed.
Article 10 compliance
Again, back in July, I had denounced a violation of Article 10, and would still to this day recommend a review by Strasbourg. But the current climate between the United Kingdom and the ECtHR is tense, to say the least, and asking for a judicial review in a British domestic court based on ECHR compliance is somewhat defiant. This shouldn’t be an issue, however. As of the date of this ruling, the United Kingdom is still party to the ECHR, and is still required to abide by its standards. Just like any state wishing to assert its national principles as being, if not superior, at least equal to supranational or international law, it all lies within a matter of interpretation. In this case, while Mr Ryder relied heavily on the fundamental principles of the freedom of the press in the handling of David Miranda and his relation to Glenn Greenwald, Laura Poitras and Edward Snowden, the Judges saw fit not to weigh the use of the ACTSA against the ECHR, but to assume, pre-emptively, that the law of the land was already ECHR compliant (which it mostly isn’t) and that said domestic law was not to establish fundamental freedoms, see; those fundamental freedoms exist by sole virtue of being on British soil, and the law only seeks to establish the exception. Referring to Attorney General v Guardian Newspapers (1990), quoting Lord Goff in para. 41:
“I can see no inconsistency between English law on this subject and Article 10 (…) The only difference is that, whereas Article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.”
I have no words.
To understand where the concept of damaging disclosure comes from, we must go back to first the definition of terrorism under the ACTSA, and the already existing but not terrorism related Official Secrets Act of 1989. Per the ACTSA, as mentioned early in the ruling, terrorism constitutes the use or threat of action where –
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection 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.
Under this very, very vague definition of terrorism, anything that is done from group acts of political dissent to actual violence against the population can constitute terrorism; it is too broad a spectrum to consider a journalist on the same scale as a suicide bomber entering a busy Guildford pub on a Friday night. The proper law to be applied here is the OSA 1989, on the information resulting from unauthorized disclosures – concerning even journalists and editors. It is an offence to disclose material:
(b) where the material was acquired as a result of an unauthorized disclosure at some stage by a Crown servant or government contractor (5 (1) (a) (i))
(c) where the material was entrusted to the recipient in confidence, or with a reasonable expectation of confidence, by a Crown servant or government contractor (5 (1) (a) (ii))
(d) where the material was acquired as a result of an unauthorized disclosure at some stage by a person to whom it had been entrusted as in (c) above.
Edward Snowden working for the NSA – a branch of the US government, as a US citizen, pertaining to US information – can only qualify under (d) as GCHQ material and information was relayed to the NSA. But the NSA files constituted classified information. They were handed to Edward Snowden in his capacity of cleared government contractor. The concept of damaging closure under the law can apply, and could potentially restrict the application of Article 10 (2), which only limits freedom of the press in line with the Johannesburg Principles … except for that small line,
preventing the disclosure of information received in confidence
This is where the notion of “pressing need” of the public interest comes into view, in Sunday Times v United Kingdom (1979). There is now a need, in the current political context, to update the current public interest jurisprudence, that has made a certain headway in the protection of press freedom against disclosure that was found non-damaging to the government, or could easily be made in the name of public interest on health risks, armed conflict, all concepts easily provable and publishable – but in this era of constant classification of all possible information relative to an extremely wide range of governmental activity at home and abroad, there is no assessing the public interest in a direct political context. This is a context in which PIIs are requested in Court of Appeals. This is a context in which surveillance is authorized by secret courts. This is a context in which Senate reports can not be disclosed even after repeated requests for obtention. It is maddening. There is nothing that has fallen into the public domain that could help a claimant assert their position that they acted in the public interest; unless there is an effort, on the part of the public, and on the part of their representatives, to see the confidentiality as the issue in itself, a red flag for the possible commitment of abuses. Transparency is an extremely perfected tool of accountability. It is, in fact, the only one.
If the High Court believes that in dismissing the appeal of David Miranda, it is ECHR compliant, it is a complete fallacy. Only the ECtHR is apt in 2014 to decide whether the confidential disclosure provision of Article 10 (2) should be upgraded and updated through landmark jurisprudence in order to weigh the damage caused by the disclosure against the notion that it served the public – and the international – interest. Assessing the compliance to fundamental human rights in a court that had already granted an anti-terrorism provision against a journalist does not provide the proper safeguards for the true judicial review of human rights.
The Human Rights Centre at Durham Law, chaired by the wonderful Fiona De Londras, with whom I have discussed a counter-terrorism judicial review, has already tackled the issue of Schedule 7 . Although their review concentrated on the impact of counter-terrorism policies on the Muslim community, their requests for change on Schedule 7 find an echo: they call for increased transparency and accountability, which has been severely lacking in this decision; and a radical demand for the length of examination to be reduced to two hours, in order to curtail the “detrimental effect” a prolonged detention can have on the individual. The intimidating effect such law enforcement powers can have on a person – especially one that is isolated from a group as they travel or transit – can not be stressed enough; and it is at the very core of counter-terrorism powers to act as a powerful deterrent. It is however proportionately damaging when the individual in custody meets no criteria of reasonable suspicion.
When it comes to journalistic rights, where are the legal safeguards that can be used to protect them against discretionary powers and media control? The High Court debated another ECtHR case, Gillan and Quinton v United Kingdom (2010), in which the supranational court absolutely refused to let fundamental rights be curtailed through simple, personal, or guided – as was the role of the PCS in this case – decision making.
For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise
Still Article 10 compliant, Lord Justice Laws?
In another case, Sanoma Utigevers BV v Netherlands (2010), the Court even assessed the long-term damage it could do to a journalist, a newspaper, and their relation to sources, credibility, and transparency if there were to be interference with executive authority:
The Court notes that orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who have an interest in receiving information imparted through anonymous sources. (…) First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body. The principle that in cases concerning protection of journalistic sources “the full picture should be before the court” was highlighted in one of the earliest cases of this nature (…). The requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources’ identity if it does not.
Despite this, Mr Kovats, representing the Government, submitted that the ECHR had “not developed an absolute rule of prior judicial scrutiny” on the protection of private interest journalism. (For the sake of the readers, there are two more decisions I did not see necessary to include). On para. 88 of the ruling, the Lord Justice found that indeed, they could not base themselves on existing ECtHR jurisprudence to establish a fundamental rule and model for them to follow.
Justice Ouseley did not encumber himself with grand statements. He did not try to contest anything; Justice Openshaw was barely existent. Ouseley just maintained the principles of 40 (1) (b) and supported that an officer, in order to launch Schedule 7 provisions, just needed to “act in good faith”. In what good faith exactly was D/Supt Stokley? Was position was he in, between uncertainty on his government’s motives and the increased pressure of several PCS sent his way? How could be possibly make the decision, without any sort of independent judicial scrutiny, that his actions were lawfully warranted? The truth is, good faith is not a test of good conscience. It is not a test of good morals, or a litmus test for someone’s willingness to stand up to abuses of power. Good faith is what it is. It is fleeting, unreliable, flaky, and perfectly serves the interests of those who benefit, use and abuse the laws they made – and had passed in good faith.
A legislative review of the ATCSA is now necessary given the judicial deference of the High Court to the executive. This is hardly a new concept in debating anti-terrorism law in the UK. In 2004, Lord Hoffmann, then on record in A v Secretary of State for the Home Department, had already challenged the concept of detention without charge or trial against fundamental liberties he believed were enshrined in British law:
The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such victory.
(*) for those getting the reference: I stand by it.