High Court Rules Detention of David Miranda Was Lawful

Alain Williams writes with news that last year's detention of David Miranda and seizure of files destined for Glenn Greenwald has been ruled lawful. From the article: "The nine-hour detention ... of an ex-Guardian journalist's partner has been ruled lawful. ... At the High Court, Mr Miranda claimed his detention under anti-terrorism laws was unlawful and breached human rights. But judges said it was a 'proportionate measure in the circumstances' and in the interests of national security. ... In his ruling, Lord Justice Laws said: 'The claimant was not a journalist; the stolen GCHQ intelligence material he was carrying was not "journalistic material," or if it was, only in the weakest sense.'" Naturally, an appeal is planned.

Comments

Of course it's "lawful"

[fustakrakich]

To paraphrase, when the government does it, it's not illegal. It would be absurd to expect any other outcome.

Re:Of course it's "lawful"

[FriendlyLurker]

Especially when it involves foreigners.

No longer true, and American just visiting investigative reporting websites means you will be spied on these days (check out the real time tracking pictures of website visitors by the GHCQ). No wonder we plunged to 46th place on press freedoms...

This story links to the BBC which also appears to be very uncritical of the UK government press freedom violations these days. A much better news source would be the new real investigative reporting at The Intercept:

On the UK’s Equating of Journalism With Terrorism

UK Court: David Miranda Detention Legal Under Terrorism Law

Re:Of course it's "lawful"

[redelm]

... so it is "absurd" to expect a government to be other than hypocritical? "Absurd" to expect a government to obey laws it creates?

Perhaps so, but I am not so cynical. This "sovereign immunity" is purely predatory behaviour and utterly inconsistent with human rights and "consent of the governed". That does not mean it will stop soon, but it is chipping away.

BTW, how did they know it was GCHQ docs? Did he confess? or Were they unencrypted and GCHQ attested?

Re:Of course it's "lawful"

[PopeRatzo]

"Elite court appointed by elite finds that spying behavior of elite is just perfectly fine. Also, shut up, hippies."

Re:Of course it's "lawful"

[Frobnicator]

BTW, how did they know it was GCHQ docs? Did he confess? or Were they unencrypted and GCHQ attested?

That is one of many oddities in the report.

Numbers 11 and 12 of the judgement(pdf) are the most telling. In the days before he was detained, the Security Service wrote, among other things "there is a substantial risk that David MIRANDA holds material which would be severely damaging to UK national security interests." Less than 24 hours before the airport incident they wrote this: "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 a government, and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under Schedule 7."

So what, exactly, does that bolded bit mean? The security services HAS ACTUAL KNOWLEDGE (not suspicion) that Mr Miranda was knowingly carrying the material. Think hard about that. They told the court that they knew the actual content of the conversation he had inside Mr Greenwald's home hours before he left. So yeah, that is a thing to think about. The bugs in that home are awful.

Now, as this is slashdot we can pontificate about how something being "made for the purpose of promoting a political or ideological cause" equates to terrorism, but that is current UK law that they need to deal with.

There is also this one in 72, that shows the justices are really out of touch: "I accept that the Schedule 7 stop constituted an indirect interference with press freedom, though no such interference was asserted by the claimant at the time." So basically the justices expected a foreign citizen (Brazilian) to properly cite the UK legal code while being locked in a room by thugs. Seriously guys?!

Overall their reasoning is frustrating but correct. If Schedule 7 applies (which it seems to) then EVERYTHING under the law applies. Even though they could have done the job in 10 minutes, the law doesn't require any kind of speed. It says the stop can last for 9 hours "for the purpose of satisfying himself ... an examining officer may [list of actions]". As long as the examining officer was "satisfying himself" (13-year-old-giggle) during that time the entire 9 hours can legally be used. It was obviously intentional that he used the full time. There is no doubt that he was trying to send a message by using the maximum time allowed, but short of declaring perjury against the investigators the court is going to accept each investigator was busy "satisfying himself" rather than punishing the guy. Unless they have some hard proof of their mental state at the time, it would be exceedingly hard to discredit their sworn statement.

Are they lying in their sworn statement about "satisfying himself"? Very likely, as it was atypical, most workers have a vague idea of the law and just follow broad training. A junior official is unlikely to ever follow along the strict edge of law, with timings down to the minute, following bullet-point by bullet-point down the law, and so it appears to be a calculated attack by legal experts. Can you PROVE it was an attack and not "satisfying himself"? Probably not without a smoking-gun document being leaked by the government.

Re:Of course it's "lawful"

[cardpuncher]

It has been a tradition in the UK for courts to refuse to intervene in executive decisions made on "security" grounds, with the justification that as the courts have no access to classified materials, they can't come to a judgment about whether the decision was properly made.

The rather notorious judge Lord Denning summed this up quite nicely in his decision supporting the deporation from the UK of US journalist Mark Hosenball for daring to mention the existence of GCHQ in an article for Time Out magazine:

They [the executive] have never interfered with the liberty or the freedom of movement of any individual except where it is absolutely necessary for the safety of the state. In this case we are assured that the Home Secretary himself gave it his personal consideration, and I have no reason whatever to doubt the care with which he considered the whole matter. He is answerable to Parliament as to the way in which he did it and not to the courts here.

The extent of his cognitive dissonance can be seen from his prefacing remarks:

In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England.

In other words, Denning (and two other judges on the bench concurred) was simulaneously of the opinion that every judgment the government had ever made in the past in curtailing liberty was justified; that the Home Secretary was above challenge in a court of law; and that England was a bastion of individual liberty.

With judges like that, courts are essentially redundant.

Incidentally, in a judgment on an attempt by the Birmingham Six (whose convictions as IRA bombers were finally quashed) to sue the police for beatings they received before finally confessing, Denning said:

If the six men win, it will mean . . . that the convictions were erronoeous. That would mean that the Home Secretary would either have to recommend they be pardoned or he would have to remit the case to the Court of Appeal . . . This is such an appalling vista that every sensible person in the land would say it cannot be right that these actions should go any further.

So, don't look to the law if you want justice.

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[account_deleted]

Comment removed based on user account deletion

Re:"Lord Justice Laws"

[Arancaytar]

His name is John Laws. Really.

Re:"Lord Justice Laws"

[Shimbo]

No, all senior judges have the title "Lord Justice" and it just so happens this one used to be called Mr Laws.

However, Lord Chief Justice Judge has retired.

Re:Miranda rights?

[WWJohnBrowningDo]

David Miranda

You have the right to be wooshed. Anything joke can and will be missed by you. You have the right to consult Google, and to have Google explain the joke to you. If you cannot Google, the joke will be explained to you by a snarky slashdotter.

Re:"Lord Justice Laws"

[MobyDisk]

And the plaintiff was named Miranda, which in U.S. law has special meaning regarding detaining people! This is almost like a cartoon.

Re:Sort of Weird

[Richard_at_work]

Uhm, no - there are no "fundamental" human rights, the very idea is a bullshit concept.

Every right we talk about are rights we grant each other - you don't have a right to life, that's a privilege society around you grants you to have and enjoy. You don't have a right to freedom of expression, that's a privilege society around you grants you to have and enjoy. You don't have a right to carry lock picks, that's a privilege society grants to certain members.

The only thing protecting your "right" to do anything at all is society as a majority, which distinctly removes the possibility that its a fundamental right.

What freedom of expression, self governance, life and everything else are are in-fact rightful and just privileges that should be defended by society as a whole for each other.

Re:Sort of Weird

[RabidReindeer]

Uhm, no - there are no "fundamental" human rights, the very idea is a bullshit concept.

Well, in the view of the authors of the US Declaration of Independence, there are 3 "inalienable" human rights: Life, Liberty, and the Pursuit of Happiness. I think we can equate "inalienable" with "fundamental".

However, it's noteworthy that despite these high words, the USA is very big on the death penalty, which would seem to indicate that the right to life isn't so inalienable after all.