disclaimer: I am not a lawyer so this is a layman’s reading of the Act. As such, it is a speculative piece of writing. Please do not take it as a legal interpretation of how the Act works.
For a robust legal analysis of the Act and how it may have applied to Mr. Miranda please see the blog by Carl Gardner http://www.headoflegal.com/2013/08/20/could-david-miranda-be-terrorist/
In the current debates over the decision to stop Mr. Miranda under the Terrorist Act 2006, there have been many discussions about how to define if someone is a suspected terrorist. As the Terrorism Act 2006 applies only to terrorists and suspected terrorists, the debate has been whether it applies to Mr. Miranda. In making it apply to Mr. Miranda, the government may have revealed more about their intelligence than they intended. I am not a lawyer so this is based on a layman’s reading of the Act.
Is it schedule 7 and section 40(1) (b)?
For the most part the focus has been on schedule 7 with a particular focus on whether Mr. Miranda fit the definition of suspected terrorist under s 40(1) (b). However, there are a couple of larger issues missed by this debate.
First, the person was stopped under the Terrorism Act 2000. Therefore, the Act applies. Under that Act, the government has broad powers to prevent terrorism. One of the powers, as we have seen, is the ability to question people at ports under schedule 7. The main question is how to know whether someone is a suspected terrorists and whether they meet the criteria of section 40(1) (b).
(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.
In turn, this has led people to look at section 1 for the definition of terrorism. In particular, the focus has been on section 1 (1) and (2).
1 Terrorism: interpretation. (1)In this Act “terrorism” means the use or threat of action where—
(a) the action falls within subsection (2),
(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, racial or ideological cause.
(2)Action falls within this subsection if it—
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person committing the action,
(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.
What I would like to suggest are two alternative views. One is simple, and presents no problems, which is the use of schedule 7 (2) (4). The second is more complicated, and presents some problems, which is the use of section 40 (1) (a).
Is it just a simple as schedule 7 (2) (4)?
As Schedule 7 (2) (4) states
(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).
Thus, an examining officer may have a suspicion or credible intelligence that indicates that someone should be questioned even if they do not meet 40(1) (b). However, we seem to have missed a larger point with our focus on schedule 7 and section 40 (1) (b).
A complicated route through section 40(1) (a)
We need to look at the Act. In particular, we need to look at section 40 (1) (a). I would suggest that as a matter of logic that the Act applies when part of it is applied. A schedule can only work if the Act itself applies. If the Act itself applies, then the Act is applicable even though some parts of it may not be relevant to the case. As such, I believe that section 40 (1) (a) is relevant to determining if someone is a suspected terrorist, which is the reason people are stopped and questioned at ports. If they are not a suspected terrorist, then the Act would not apply. In other words, the Act does not apply to anyone who is not a suspected terrorist.
Under 40 (1) (a)
40 Terrorist: interpretation. (1)In this Part “terrorist” means a person who—(a) has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63, or
If we look at section 58 we see a probable cause to stop someone who may have documents that would aid terrorists.
Section 58 brings in electronic records
If we look at section 58 we see
(1)A person commits an offence if—
(A)he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or
(b) he possesses a document or record containing information of that kind.
(2)In this section “record” includes a photographic or electronic record.
If the files obtained by Mr. Snowden would have information about terrorist activities or at least would have value for them.
If the suspect holds documents, such as those taken from the NSA that would be use to a person committing or preparing an act of terrorism, then it would be a possible breach of section 58. If that is the case, then the examining officer would have enough probable cause to stop the suspect and question them about what they have to see if they are a suspected terrorist as defined by either 40 (1) (a) or 40 (1) (b).
Follow the logic trail; does it show someone could be a suspect terrorist?
If officer had credible intelligence that would show Mr. Miranda possessed computer files that would “be useful to a person committing or preparing an act of terrorism”, then s.58 would apply. If section 58 applies, then section 40 (1) (a) applies. If 40 (1) (a) applies, then section 1 applies. If section 1 applies, then 40 1(b) applies. By his possession of the NSA files, if they contained information that would be useful to a person committing or preparing an act of terrorism, then he would be a suspected terrorist. If he is a suspected terrorist then the officer would have been justified to use schedule 7 powers to stop and question.
Whatever the reason, we have a problem.
Second, no matter the legal process followed to stop Mr. Miranda, there is a larger problem for all parties involved. A problem, they may need to negotiate a solution to very quickly. What I would suggest is that if the government followed the logic I set out (again, a big if), then they may have indicated that the files taken by Mr. Snowden contain information that will aid terrorists if disclosed. What we now have is a serious problem for the government and those who possess those documents. If a newspaper publishes material but does not know the way in which it can aid a terrorist and the terrorist uses that information, will the newspaper be complicit? If the government knows that the files contain material that would help terrorists if disclosed, then they have to recover them. Yet, to recover them, they will have to indicate which ones and for what reason. Moreover, they may have no way to recover them if they have been dispersed to other people.
Vetted to protect the United States, but what about the United Kingdom?
Herein we see a possible problem for the UK government. Mr. Snowden said he carefully vetted the documents he took so as not to harm the United States. Did he make such a careful vetting for the UK? More worryingly, if Mr. Greenwald and Ms Poitras are allowing these documents to be transported by Mr. Miranda, what does this suggest about their operational security for information that is still highly classified?
To know what process the government used to detain Mr. Miranda, we will have to wait to see how the government defends itself against his legal claim.
- May briefed before Miranda detained (standard.co.uk)
- GUARDIAN: ‘A betrayal of trust and principle’… (theguardian.com)
- British law gives broad powers for terror detentions (channelnewsasia.com)
- The Terrorism Act 2000, David Miranda and the rule of law. (bigbrotherwatch.org.uk)
- What is Schedule 7 of the UK Terrorism Act? (itv.com)
- Was Miranda’s detention lawful? Yes, but only because the Terrorism Act allowed it (chrisattrill.wordpress.com)
- Miranda 2 ~ The Code of Practice (truelabour.wordpress.com)
First a disclaimer – I am also not a lawyer, but I have participated in many legal cases!
I would like to refer you to the most excellent blog of Carl Gardner, a lawyer that I respect. His latest blog released this evening clarifies his thought on the matter.
As I submitted to Carl:
“Context is everything.”
I am quite satisfied that in this particular context, the information being transported could be used to endanger life, satisfying Section 1 (2)(c) or (d)) of the Terrorism Act 2000 and that the articles written by the Guardian were designed to influence or modify the activities of GCHQ and the NSA (satisfying subsection (1)(b)), to embarrass the Government in the process and reduce public confidence in them, to advance the Civil Liberties agenda & to enrich the Guardian by selling more papers in the process (satisfying subsection (1)(c)).
Ultimately, Greenwald, Miranda and the Guardian are acting irresponsibly if they disseminate information which then endangers lives, just as much as if they disseminated a terrorist handbook.
Under the circumstances, given that we know that Miranda, Greenwald and the Guardian misled the public about the true circumstances of the detention (in that they said that Miranda had not been offered legal aid), you have to wonder of Miranda is also telling the full truth about the questioning?
Could it be that the questions were really designed to elucidate whether Miranda was fully complicit in Greenwald’s activities & by doing so had crossed the line in aiding an abetting any activity which could be construed as terrorism?
If the Guardian was reckless as to release information which could be used by terrorists, then even if they were unaware of the aid they were giving to terrorists, they were guilty of an offence. This is the old conundrum of whether someone is guilty of a crime if they were unaware of the law. Of course we all know that “Ignorance of the law is no defence!”
The point is that the Guardian has access to legal minds who can determine the legality of the information they are publishing. If the Guardian was approached by senior members of the civil service, such as the Cabinet Secretary and told that the information could damage National Security, then the Guardian had a duty to destroy said information to ensure that it did not fall into irresponsible hands. The Government could have slapped a D-notice on the Guardian to stop them publishing, but that would still leave the information in the possession of people unauthorised to own it and who could disseminate it by other means.
Then there are the threats made by Greenwald. He was threatening, out of sheer revenge, to expose British intelligence and therefore British agents. He tried to deny these threats later, but unfortunately for him, CNN reported his exact words with the video to prove it:
Glenn Greenwald, the reporter who broke the news about secret U.S. surveillance programs, said the authorities who took his partner into custody at London’s Heathrow Airport “are going to regret what they did.”
“I am going to write my stories a lot more aggressively now,” the Guardian reporter told Brazil’s Globo TV on Monday in Rio de Janeiro.
“I am going to publish many more documents now. I am going to publish a lot about England, too, I have a lot of documents about the espionage system in England. Now my focus is going to be that as well.”
http://www.youtube.com/watch?v=HIvF8KXTW3s (slide to 1:20 for Greenwald)
Seems to me that Greenwald has declared war on the UK and such threats can be construed as acts of terrorism under the Terrorism Act 2000.
I am aware that Miranda is about to seek a judicial review of the arrest and seizure of his material. He will have to come back to the UK. I fear that he may be arrested and charged if he does. The same is true for Greenwald, but in his case, he might be arrested and extradited for terrorism offences. That is of course if he can get himself off the ‘No-Flight Black List’, because he might not be able to leave Brazil again without being detained.
As a last thought, by transfering information to a journalist, Snowden is in breach of the conditions made by President Putin when he was granted his temporary visa. The Russian President is rather keen to hold a meeting with President Obama at the next G8 conference. So this might be the opportunity to restore relations by sticking Snowden on the first plane to the United States.
Thank you very much for your detailed response. I had just read Mr. Gardner’s excellent blog when I wrote my very speculative piece.
I would also add that in my twitter exchanges with Mr. Gardner, he put forward a convincing argument that my speculative article would not be sufficient to justify the questioning.
We will have to wait and see how the government justified the decision to stop Mr. Miranda. If it was because of section 40 (1) (b), then we need to know what parts of section 1 they believed Mr. Miranda met or what made them suspect that he would be a suitable candidate to stop to question to determine if he met 40 (1) (b).
Excellent breakdown (being a layman myself).
The overriding question in this case seems to be if the potential release of information can be deemed an act of Terrorism. I would argue that current legislation is broad enough to suggest this, but that a court must test how such powers can be used.
It is worth noting that ‘coercion’ or influencing the Government for ideological purposes, as stated in Section 1, would include religious lobby groups! There is clearly a strong role for common sense in the application of these powers, and it is up to a court to emphasise the limits of how they may be applied in practice.
Thanks for the positive comment. My late response means that events have changed the context of the original post. Looking at the case now made, it was s.58 which is the key issue. The material in the hands of the wrong person is a big problem. As we have seen, the operational security for the files was relatively weak. We will have to see what will develop.
Thanks for the positive comment.