Well Bob, as much as the world and I miss your timeless music, I shudder to think about how you'd feel about "the way earthly things are going" nowadays. This weekend brought news that a legend has passed. The ill-health of another continues. All whilst the entire world holds it breath to see what the next move might be in a conflict with no end in sight that has already left more than 100,000 dead.
I'll refrain from commenting further on that conflict here, not least for the fact that fellow Judicalis colleague Tom Opdyke has written a thoughtful piece on it here. Today, I'd like to stay true to this blog's chief purpose (aside from generally making fun of Canadians) and comment on a topical piece of anti-terrorism policy.
This brings us to the saga of David Miranda (who, as one of my colleagues recently pointed out, has one of the most ironic last names of anyone who has ever claimed to be the victim of a rights abuse).
For those of you who have yet to hear of his story, David is the partner of Guardian news journalist Glenn Greenwald. Greenwald has been writing a number of stories over the past few months about surveillance by U.S. and U.K. authorities since being leaked details of an extensive surveillance system called PRISM by Edward Snowden, a former member of the U.S.' National Security Agency (NSA). Don't know what PRISM is? If you use Google, Facebook, Skype, or YouTube you might want to have a quick peruse of that last link.
Back to Miranda. A few weeks ago, the Brazilian citizen was on his way to Rio de Janeiro from Berlin, where he had stayed with U.S. filmmaker Laura Poitras, a colleague of Greenwald's also working on the Snowden leaks. Upon arrival at Heathrow Airport, Miranda was detained and questioned by U.K. police for nine hours under schedule 7 of the Terrorism Act 2000, the maximum time allowable under the law. A number of Miranda's personal effects were seized, most notably his computer and various storage devices.
Cue the ensuing security versus freedom debate.
Critics of Miranda's detention have immediately decried it as a vindictive attempt at intimidation, framed by Greenwald himself as an affront to the cherished value that is the freedom of the press. They have particularly pointed to the irregularly long period of Miranda's detention as evidence of this fact (the Home Office's figures that schedule 7 examinations last less than an hour in 97% of cases lends this line of argumentation particular pertinence).
Critics of the law itself are especially concerned about the fact that it contains no "reasonable suspicion" standard, which in itself is a relatively low legal standard that is nonetheless present in a number of other anti-terrorism mechanisms (including those which my research analyses). The absence of such a standard, according to the schedule's own code of practice, means that an examining officer is required to take into account a number of considerations, in a manner that is not arbitrary or discriminatory, including current and emerging trends in terrorist activity and patterns of travel. Amnesty International, several senior politicians, and David Anderson (the U.K.’s independent reviewer of anti-terrorism legislation) have called for the law to be reviewed.
Defenders of the law, namely the Home Office, have argued that the powers are an essential part of the U.K.'s security arrangements. Scotland Yard, whilst not releasing the grounds on which Miranda was detained, have said that the detention was legally and procedurally valid. More recently, Oliver Robbins, deputy national security adviser for intelligence in the Cabinet office, attested that the material Miranda was carrying amounted to approximately 58,000 highly classified documents that would surely cause harm to U.K. national security if disclosed.
Proceedings are under way for Miranda to challenge his detention before a full court hearing that will take place some time in October. It is hoped that at this point Miranda will get his day in court, and that government assertions about the risk of disclosing the information will be fairly and openly debated.
But will this be the case? In this writer's humble opinion, there are reasons for scepticism and concern.
The trouble with much anti-terrorism litigation, prosecutions, and review hearings is that often times it is argued that disclosing certain information that is material to the case would be injurious to the interests of national security or international relations. The line of argumentation generally goes something like this: to release this information into open court would be damaging to national security because it may provide crucial information to the enemy, it may risk the lives of security service professionals tasked with protecting the country, and/or it may damage the intelligence sharing relationships with other countries that are so crucial to protecting domestic safety (the last concern has been of particular relevance in the context of recent litigation brought by Guantanamo Bay detainees).
In both the U.K. and Canadia, there are complex legal arrangements for dealing with non-disclosure claims made on national security grounds (so complex, in fact, that they've occupied page upon page of my dissertation and have probably taken at least five years off of my life). These systems, whether you call them Public Interest Immunity or Secret Courts, often result in an outcome where no involved party is happy. Those on the side of open justice will say that non-disclosure, or disclosure in a closed hearing often absent the defendant or litigant, is an affront to the right to a fair trial, one of the most deeply entrenched legal principles around the globe. Even those arguing for the non-disclosure will argue that they are put in an awkward position because they can't openly use material they would wish to use, leaving them with the choice between a costly settlement or the release of information that they believe (or have argued) to be harmful.
These outcomes do little to assuage public concerns or build confidence in a system of criminal justice, and it is a crucial component of any such system that justice not only be done, but be seen to be done. Shadow Home Secretary Yvette Cooper recently commented on the Miranda saga by saying that, "Any suggestion that terror powers are being misused must be investigated and clarified urgently. The public support for these powers must not be endangered by a perception of misuse".
She's absolutely right.
Miranda and the general public deserve answers, and there are legitimate concerns with the use of the schedule 7 provisions, particularly in regards to the irregular manner through which they were used here. If his case, and the media attention fuelling it, leads to some kind of clarification on the law or an improvement of operational guidelines, than it will be considered a victory. But this case is about more than the detention he experienced. It is about a struggle between national security and fundamental rights, particularly in cases that involve sensitive information, that will be ongoing for the foreseeable future.