Four Points To Remember In Connection With The Detention of David Miranda

Politics & Current Events

This weekend British authorities detained David Miranda — a Brazilian citizen and partner of journalist Glenn Greenwald — for nine hours at Heathrow Airport as he traveled from Berlin to Brazil. Miranda was detained under Schedule 7 of the U.K.'s Terrorism Act of 2000, which allows up-to-nine-hour detentions at the border when British agents wish to question travelers they believe might be "concerned in the commission, preparation or instigation of acts of terrorism." British authorities reportedly took all of Miranda's electronics and electronic storage devices.

Miranda had been visiting filmmaker Laura Poitras, who has been repeatedly detained by the United States government when traveling here, and who — like Greenwald — is associated with the revelations by former NSA contractor Edward Snowden.

Miranda's experience was undoubtedly terrifying and infuriating. On the other hand, at least he wasn't stalked and abruptly shot seven times in the head as he lay prone on a subway floor, like his countryman Jean Charles de Menezes, whose random encounter with British anti-terrorism policy was fatal.

Responses have been varied. Many view this as an abuse of anti-terrorism measures to harass journalists and pursue leak investigations. Others say that Greenwald was using Miranda to courier documents connected to illegal leaks, and should not be surprised that Miranda was detained. (I note that nobody seriously asserts that Miranda has any connection to terrorism; the people defending or minimizing his detention seem to be asserting that it is acceptable for British authorities to use Schedule 7 to investigate the Snowden leak.)

I know what I think. But I am waiting a bit to write more in detail. As I analyze the competing arguments, my view will be informed by these points:

1. Governments lie about the scope of their surveillance measures against us.

2. Governments say that what they are doing in the war on terrorism needs to be secret, but governments have an established record of lying about their need for secrecy.

3. When governments say that they are using their powers to fight terrorists, government are lying. Government actually use their expanded powers to pursue whatever they want, including copyright infringement and the War of Drugs. Therefore it would not surprise me in the least if a nominally anti-terrorist measure were stretched here to accommodate a leak investigation.

4. Governments say that they are using their power to fight terrorists, as if the identity of "terrorists" is a static and principled matter. In fact, who is or isn't a terrorist is a political question resolved in the discretion of the government based on the balance of power at any given time, as I learned to my regret.

Those four points are mostly supported by references to U.S. actions, but I see no particular reason to expect the U.K. to act differently.

Last 5 posts by Ken White

47 Comments

45 Comments

  1. Hoare  •  Aug 19, 2013 @9:35 am

    GCHQ and copyright?

    ask Kim Dotcom & megaupload

    http://online.wsj.com/article/SB10000872396390443916104578021590722745574.html?mod=rss_whats_news_technology

    but the NZ Prime minister says "sorry about that"

  2. Michael K.  •  Aug 19, 2013 @9:41 am

    "The money from the sale of a bunch of those pirated DVDs went to a guy who donated some of it to an organization that has been sympathetic to Al Qaeda, so YER DAMN RIGHT WE'RE GONNA TREAT COPYRIGHT INFRINGEMENT AS TERRORISM."

    It's almost too easy.

  3. That Anonymous Coward  •  Aug 19, 2013 @9:49 am

    It would be nice if they stopped listening to the private contractors and department heads just trying to protect and expand their budgets.

    They assume the problem can be solved by throwing more money at it, and chipping away at what they claim they are protecting for citizens. They have no reach the point where they are obviously violating founding principles of the country, and they are lying about doing it.

    No one is in charge of these things, the rules are setup to allow everyone to deny things at every stage and pass the buck when they are caught lying.

    Oh and they are doing NOTHING to keep the country safe.
    Our intelligence community has proven they are nothing but fail.

    - International Incident forcing down the plane of a sovereign nations leader because they THOUGHT Snowden was on board.
    A man confined to a small area of an airport, and they were unable to gather any intel about his location.

    - The constant overstatement of what the program has done.
    We stopped all of these terrorist things, and pay no attention to the real police work that stopped this one we are claiming credit for.

    Its now acceptable to target the families of "Enemies of the State".
    Didn't we used to call out dictators who did these things?

    So much disgust.

  4. ZarroTsu  •  Aug 19, 2013 @10:12 am

    No, see, because nothing is happening it must be working! [CITATION NEEDED]

  5. Dave Crisp  •  Aug 19, 2013 @10:18 am

    I'm hearing the right noises coming from Various MP's about this; including Keith Vaz, the chairman of the HoC committee that (theoretically) has oversight of the Home Office and the police. At the moment, however, noises are all they are, and time will tell if they play out into anything concrete (I doubt it). Still pretty much complete silence from the Gov't front bench.

    On the gripping hand; we Brits now have a legitimate reason to use the name "Miranda" when talking about police abuses.

  6. another coward  •  Aug 19, 2013 @10:22 am

    It would be pretty confusing if this detention led to a court challenge which led to a new series of rights in the UK regarding detentions at borders.

    Confusing because the new border detention rights might be referred to as 'Miranda Rights'.

  7. Dave Crisp  •  Aug 19, 2013 @10:27 am

    Also, is it bad that I'm mildly gratified how much of a complete non-issue it has been in the reporting of this story that Greenwald and Miranda are a couple?

    Because not so long ago, it would either have been sensationalized more than the actual issue or completely swept under the carpet. One step forward, and another step back…

  8. David  •  Aug 19, 2013 @10:31 am

    5: I need a drink.

  9. James  •  Aug 19, 2013 @10:39 am

    @Dave Crisp – but the fact that David Miranda is Greenwald's partner is, in fact, mentioned in every single story (because it's material); it's also leveraged in certain press accounts be homosexual.

    Greenwald now says he's going to be more aggressive in releasing documents, especially those that reveal British practices. And yet, the story still seems to be about "The Partner" than about the crime. US Media, in particular, are so caught up in whether Snowden's father has the right to speak for his son, and so oblivious to the fact that (because 202 looks like 20) every phone call in Washington DC was "accidentally" hoovered up and screened for content.

    So I'll repeat my question from earlier this year: where is the public outrage, and where are the public leaders? Where are today's Thomas Paine, MLK Jr., and other charismatic, outspoken leaders?

    What should an ordinary voter do? I've written letters (actual hardcopy snail mail), emails, and made phone calls. And my elected representatives simply don't seem to care. Restore the Fourth was a joke.

    What to do? What to do?

  10. That Anonymous Coward  •  Aug 19, 2013 @11:02 am

    @Dave Crisp – Give it time. I'm sure Michael Grunwald will manage to say something stupid about that too.

    @James – They are secure in their little bubbles, feeling safe that as "Good People" (TM) these programs magically skip over them. If this was important they would talk about it on the Real Housewives of whatever. Even if they managed to "accidentally" target one of the "Good People" (TM) the system would correct itself automagically, there has never been any failure in the system… *cough* Boston *cough*.

    The outspoken leaders are terrified of speaking.
    Drone strikes are authorized on accusation.
    Rendition.
    Your loved ones "detained" and mugged at the border.
    Mysterious home robberies where only a laptop is stolen.
    The media crucifies anyone deviating from the party line, because they fear not getting the next big story handed to them.
    And GitMo is still open for business, holding people because to allow them a trial would give away secrets.

    It is very hard to get people to pay attention to very real things if your not the right person. There are still people who are just sure I have to be lying about the copyright issues I speak out on, because I have a trendy avatar and won't give them my real name. Its hard to get the message out when the other side has access to all sorts of data they can let leak to silence the messenger.

  11. Michael  •  Aug 19, 2013 @11:08 am

    "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."

    - B. Franklin

  12. John  •  Aug 19, 2013 @11:15 am

    I know your people have no tradition of proofreading, but " The War of Drugs" made me lol. Picturing a joint and a syringe jousting or something.

  13. AlphaCentauri  •  Aug 19, 2013 @11:21 am

    Do we know it was definitely because of Snowden? Because they might have been thinking he was an agent of that Homosexual Agenda we're always hearing about.

  14. Kevin  •  Aug 19, 2013 @12:08 pm

    I hate to be the first to play the "gay card", but has anyone else considered the thought that perhaps they might not have had the balls to pull a stunt like this if it had been his wife, rather than husband?

  15. Chris  •  Aug 19, 2013 @12:17 pm

    When this story broke yesterday, I had a look at the grounds for detaining someone at the border under Schedule 7 of the Terrorism Act. Among the (long) list of possiblr offenses are:

    Section 58

    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.
    (3)It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession.

    Section 58A

    (1)A person commits an offence who—
    (a)elicits or attempts to elicit information about an individual who is or has been—
    (i)a member of Her Majesty's forces,
    (ii)a member of any of the intelligence services, or
    (iii)a constable,which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or
    (b)publishes or communicates any such information.
    (2)It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action.

    (4)In this section “the intelligence services” means the Security Service, the Secret Intelligence Service and GCHQ (within the meaning of section 3 of the Intelligence Services Act 1994 (c. 13)).

    On the face of it, these would seem to cover someone who acquired Snowden's documents. Some of the information is "likely to be useful to a person committing or preparing an act of terrorism" and if any of the records identify any current or former employees of GCHQ (the British equivalent of the NSA) they would fall under Section 58A. So the British authorities probably had authority to detain David Miranda under the relevant law.

    That said, these provision seem astonishingly broad (they're not just justifications for detaining someone at the border, they're separate criminal offenses carrying prison terms of up to 10 years. In particular, the "criminalize a broad range of conduct but allow people to argue they have 'a reasonable excuse' for that conduct" seems very backwards to me. Maybe this is a UK thing (I doubt it would pass constitutional muster here in the U.S.).

  16. nlp  •  Aug 19, 2013 @12:28 pm

    It appears that, having ignored Sinclair Lewis since American Lit, I will now have to return to his works and read, "It Can't Happen Here."

  17. En Passant  •  Aug 19, 2013 @12:33 pm

    1. Governments lie about the scope of their surveillance measures against us.

    Love him or hate him, Izzy Stone predicted the consequences of lying by policy decades ago:

    All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out.

    But the nigh imponderable issue is which officials and how many officials have to be burned by the very policies they've lied about before Stone's predicted disaster actually happens.

    The USSR ran for decades, and cost millions of innocent lives, before it fell apart internally. The number of government officials during that period who smoked the same hashish they handed out, yet wound up in gulags for their devotion, is enormous.

    The same could become true for any other surveillance state.

    Just a thought to cheer everybody up.

  18. Rick H.  •  Aug 19, 2013 @12:43 pm

    Chris:

    "Astonishingly broad" is an understatement. Looks to me like any person carrying a laptop or a camera could well be charged under that statute. It's so vague there might as well not even be a law.

    Also, the part about "proving a reasonable excuse" shifts the burden of proof completely off the government. It's a fishing expedition with no downside for the authorities, except (perhaps) politically. This shit is just vile – it's a policy I might expect in Saudi Arabia, not in the country where "innocent until proven guilty" became common law.

  19. Tarrou  •  Aug 19, 2013 @1:08 pm

    @ Kevin,

    Yes, the "gay card" is clearly called for here, as neither the US nor the UK has ever violated civil rights of a straight person under the guise of the "war on terror". Only his sexual orientation can explain this strange and novel abuse. Your logic, education and parentage are impeccably beyond reproach.

  20. Renee Marie Jones  •  Aug 19, 2013 @1:14 pm

    Voters know the people they vote for lie and they vote for them anyway. I used to work with a staunch conservative that openly admitted that he thought it was right and proper that elected officials lied. We get the government we deserve.

  21. Peter Walkley  •  Aug 19, 2013 @1:24 pm

    The gay card will have been played up so that it features right up front in our thoroughly racist and homophobic tabloids. It is a very nice distraction from the real issue so that the great British public ignore the story and move on to whichever D-list celeb was caught cheating on their insignificant other this time.

  22. Anton Sirius  •  Aug 19, 2013 @1:37 pm

    5 (or, shorter 3). Titling a piece of legislation as "anti-terrorist" has no impact whatsoever on who that legislation can be applied towards.

    See also Chris' post above. Given the language in Schedule 7, Miranda's detention isn't even a stretch. It's been used much more egregiously than this before.

  23. Dan Hill  •  Aug 19, 2013 @1:40 pm

    Damn, now I have to burn all my history books, since they are all perpetuating the fiction that the forces of totalitarianism were defeated in WWII and the Cold War…

  24. Dave Crisp  •  Aug 19, 2013 @1:40 pm

    @Peter Walkley: My point was that, by and large, the gay card hasn't been played up. Admittedly, I haven't checked the Daily Heil because I refuse to give them even so much as a single page hit, but every other major news outlet over here has simply stated plainly that Miranda and Greenwald are partners and then carried on with the story exactly the same as they would have had it been a heterosexual couple.

    Which is, in a sense, exactly what those of us who have fought for gay rights have wanted all along, but is still new and rare enough that it's mildly surprising when it actually happens.

    But I'm now worried that I've derailed this thread from the real issue by bringing it up, so I think I'll stop there.

  25. Dan Hill  •  Aug 19, 2013 @1:42 pm

    @Chris

    "(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"

    A street map of London would be useful to a terrorist planning to blow up say Big Ben. So if I collect one of those free maps from my hotel desk, I could be detained under Section 7.

    Broad doesn't describe it. Why don't they just write the truth – "we can detain anyone we want for any purpose we like."

  26. Kevin  •  Aug 19, 2013 @1:47 pm

    Heh, yeah, the "gay card" thing was just a random thought, not something I'm actually convinced played a part, just something worth considering. All I mean is that if the headlines had been "wife" instead of the ambiguous "partner", it likely would have caused even more outrage than it did, if for no other reason than it would have been more clear (people just scanning the headlines might not understand what "partner" meant in this context). Also, there's a certain amount of homophobes out there who might have cared about the story had it not been for The Gay.

    Yes, I do of course understand that neither gays nor straights are safe from the boot heels of these thugs, I'm just saying that even they have to care about PR, and it doesn't seem impossible that something like the above may have factored into their calculations.

  27. Dan Weber  •  Aug 19, 2013 @1:52 pm

    I give Michael credit for leaving "essential" and "a little temporary" in the quote. Many people repeat the quote without those words.

  28. Simon  •  Aug 19, 2013 @2:07 pm

    Michael K, in the UK piracy = terrorists has been the case for decades.
    Check out the anti piracy video on
    http://www.youtube.com/watch?v=wssfl22Hhp4

  29. Xenocles  •  Aug 19, 2013 @2:40 pm

    "…fiction that the forces of totalitarianism were defeated in WWII and the Cold War…"

    Of course they were, but only in the same sense that Germany was defeated in WWI.

  30. Peter Walkley  •  Aug 19, 2013 @2:46 pm

    @Dave Crisp
    I think the authorities played the card subtly when they used the word 'partner' and not 'friend'. It adds just enough to let the red-tops off their leashes. Classic misdirection from the real issue.

  31. Dave Crisp  •  Aug 19, 2013 @3:00 pm

    @Peter: I'm not seeing the redtops running of their leashes. Admittedly the Sun is behind a paywall now, but the Mirror is covering it in the same way as everyone else – mentioning the relationship because it's relevant to the story, but then carrying on as they would if it were a straight couple.

    So, basically, [citation needed].

  32. AlphaCentauri  •  Aug 19, 2013 @4:49 pm

    Perhaps the gender card is the one that should be played — if they are less likely to detain the wife of a journalist, it's because they're more willing to believe a woman would be clueless about what her husband is doing.

  33. ToeKnee93  •  Aug 19, 2013 @4:57 pm

    I have one simple question.

    If David Miranda was in transit from Berlin to Berlin, at what point in time did he actually cross the border into the UK?

    I thought that transit lounges were ex-territorial, or is this also a legal fiction.

  34. barry  •  Aug 19, 2013 @5:09 pm

    When the line between journalism and terrorism is blurred enough that everything published is a press release, the Inner Party have won.

  35. En Passant  •  Aug 19, 2013 @5:54 pm

    Dan Hill wrote Aug 19, 2013 @1:42 pm:

    A street map of London would be useful to a terrorist planning to blow up say Big Ben. So if I collect one of those free maps from my hotel desk, I could be detained under Section 7.

    Big Ben? Pish tut — a mere mechanical toy that more or less tells the time of day. They'll only detain you an hour or so.

    But possession of a certain satirical Conrad novella could get you rendered one-way to Gitmo under suspicion of plotting to destroy time itself.

    And don't even think of carrying leaflets headed F. P., with a hammer, pen, and torch crossed.

  36. Sami  •  Aug 19, 2013 @6:17 pm

    With reference to the changing designations of terrorist groups – it's worth noting that no association of inconstant humans is anything but inconstant, and a group that was once laudable can become a terrorist movement, and it's also not beyond the bounds of reason for a terrorist group to become not-terrorist.

    (For example, South Africa's ANC started out as a movement for social change, became terrorists, became "freedom fighters" somehow during the period in which they murdered thousands upon thousands of innocent people, most of whom were black, for the specific purpose of inducing terror, then became the legitimate government of the country, albeit corrupt on an increasingly spectacular and brazen level that will hopefully soon see them turfed out by the electorate.)

    (For another example, look at the Yakuza, and their role as, among other things, the first organisation to get disaster relief into earthquake-devastated parts of Japan.)

    With reference to David Miranda: Another disturbing element that may be overlooked by coverage in the United States is simply this: it is somewhat disconcerting that the UK would abuse such power against an individual connected to alleged crimes against the United States. It would seem that at present Her Majesty's Government view themselves less as a sovereign power and more as America's pet (British bull!)dog.

    Ugh.

  37. Clark  •  Aug 19, 2013 @6:24 pm

    @Sami:

    For example, South Africa's ANC started out as a movement for social change, became terrorists, became "freedom fighters" somehow during the period in which they murdered thousands upon thousands of innocent people, most of whom were black, for the specific purpose of inducing terror

    "Somehow" ?

    It's pretty clear how they become "freedom fighters" despite murdering thousands of blacks by torturing them to death with gasoline and tire fueled fires.

    They stood opposed to white Western racists.

    This is the same reason that the Nazis were the worst people who ever lived, and Stalin, Mao, and Pol Pot "made mistakes".

  38. Sami  •  Aug 19, 2013 @6:27 pm

    Damn, now I have to burn all my history books, since they are all perpetuating the fiction that the forces of totalitarianism were defeated in WWII and the Cold War…

    … Yes. Get better history books, the ones you have are clearly terrible. Good ones will tell you that the forces of Nazi Germany, Fascist Italy, and Imperial Japan were defeated in WWII, and that no-one was really "defeated" in the Cold War, but rather that the Soviet Union gradually kinda started to fall apart. But the Party machine is fairly much intact in Russia, and fascism in general survived WW2 just fine.

    Apart from anything else, Franco survived until 1975 to achieve the longest-lived dictatorship in European history. Declaring totalitarianism defeated in 1945 is just bizarre.

    America itself has done just fine in establishing a number of totalitarian and/or fascistic micro-states, such as Maricopa County, Arizona. Since many of the wealthiest and most influential fascists in history were American (such as Henry Ford, for example), it's not really surprising.

  39. Rich Fiscus  •  Aug 19, 2013 @7:01 pm

    @Simon:

    They've tried to make the piracy = terrorism argument in the US with limited success. That became a moot point once they worked it into the so-called cyberwar strategy:

    The reasoning (and I mean that in the most sarcastic and condescending way possible) used by the intelligence community goes like this. The Internet is inherently insecure. The government has proven completely incompetent at basic system security. The utility companies have ignored basic updates to their industrial systems. Also OMG piracy!!!!! Therefore DHS and NSA need to be given direct "oversight" of all Internet infrastructure immediately.

    And let's not forget the whole cyberwar farce was invented by the Director of National Intelligence immediately after the Supreme Court made him shut down his telco listening rooms.

  40. Dennis  •  Aug 19, 2013 @7:34 pm

    Is it just me, or is the new definition of "terrorism" seem to be "that wish scares the crap out of government and quasi-government agencies by: (a) revealing or potentially revealing illegal behavior; or (b) publication, duplication, or transfer of documents that reveal embarrassing facts; or (c) anything else that does not praise government and it's infallibility"?

    Not only do we have legal detainment for the express purpose of intimidation, we also have the destruction of a newspaper's property to prevent reporting. I'm not a citizen of Britain, but this seems so far out of bounds that it makes the Daily Mail seem like a sane voice in the room.

  41. Kevin  •  Aug 19, 2013 @7:45 pm

    @Alpha Centauri: good point – also seems plausible.

    @Peter Walkley: "partner" was Greenwald's choice of terminology.

    @ToeKnee93

    If David Miranda was in transit from Berlin to Berlin, at what point in time did he actually cross the border into the UK?

    I thought that transit lounges were ex-territorial, or is this also a legal fiction.

    I also wondered this. Does anyone have any idea of an answer?

  42. Woff1965  •  Aug 19, 2013 @8:40 pm

    As a UK national I am absolutely appalled by this, but not surprised. The Home Office have always been packed with authoritarian nutjobs and this draconian legislation is simply another manifestation of it. The paranoia this has created has led to trainspotters being arrested for taking photos of trains (because how else would a terrorist from the mountains of Afghanistan recognise one).

    Sometimes it seems that too may politicians and bureaucrats read 1984 under the impression it was some sort of how to manual.

  43. Anony Mouse  •  Aug 19, 2013 @11:28 pm

    "So I'll repeat my question from earlier this year: where is the public outrage, and where are the public leaders?"

    Tribalism. One side will defend anything and everything "their guy" does (see: Filner), the other side is afraid to say anything for fear of being branded racist (and they want to be able to do this shit when it's their turn).

    This leaves people stuck in the middle who can be ignored as a bunch of goofy cranks who only care about pot.

  44. JohnC  •  Aug 20, 2013 @2:06 am

    @ ToeKnee93, et al

    I thought that transit lounges were ex-territorial, or is this also a legal fiction?

    Mostly yes, it is a fiction.

    You're subject to whatever country's laws, but the zones have been created by national and international law as an exemption to the usual visa requirements. So, they make travel easier (i.e., If you're flying from Beijing to Iceland, you don't need a visa for your 2-hour layover in Germany. Plus, DUTY FREE! (still overpriced crap)). That exemption doesn't apply to all citizens, however (namely those from countries likely to produce unwanted refugees), so, more importantly, they also act as a holding pen so those making asylum requests don't get a foot in the door (e.g., like a Cuban who reaches who makes it to U.S. soil has).

    The latter is something of a weird and complex subject. But once you're at the airport, you're subject to national laws, though those laws usually have some travel zone exceptions (i.e., If you're flying from Maine to FL with a gun in your bag, you're exempted from certain handgun laws during your overnight layover at Laguardia. On the other hand, don't bring your prescription drugs to Dubai.).

    In other words:
    "They were threatening me all the time and saying I would be put in jail if I didn't co-operate," said Miranda. "They treated me like I was
    [someone smuggling and distributing illegally obtained classified document, because, well, I was]….It was exhausting and frustrating, but I knew I wasn't doing anything wrong [yet I pretty much caved immediately]."

  45. baxbax  •  Aug 20, 2013 @10:42 pm

    boingboing links to a Guardian article and to the text of a letter sent by David Miranda's attorneys to the British Home Secretary in which there is a very clear and methodical accounting of all the ways that his detention and seizure of property misused Schedule 7 provisions and otherwise violated British and European law.
    http://boingboing.net/2013/08/20/david-mirandas-lawyers-nasty.html

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