Monday, August 19, 2013

No Miranda Rights For Miranda

David Miranda (left) and Glen Greenwald



The cooperation national security establishments of western democracies afford each other when embarrassing details of their spying programmes are exposed by intrepid journalists was on full view, Sunday. But the nine hour detention at Britain’s Heathrow airport of David Miranda , also demonstrates something else: how broadly anti-terror laws apply to net in individuals who expose government wrongdoing.

Miranda (28), is the partner of Glen Greenwald of the UK Guardian, who helped US whistleblower Edward Snowden expose domestic surveillance by British and US national security agencies.  

In a report on August 19, the BBC said Miranda was detained for nine hours by the British police under the country’s anti-terrorism law while in transit at Heathrow travelling from Berlin to Rio de Janeiro. He had flown to Germany to consult with filmmaker Laura Poitras who is working with Greenwald on exposes by Snowden. “‘I remained in a room, there were six different agents coming and going, talking to me,’ Mr Miranda said. ‘They asked questions about my entire life, about everything. They took my computer, video game, mobile phone, my memory cards, everything,’” the BBC quoted Miranda saying.

The reason for Miranda's harassment in Snowden, an analyst working for a US contractor Booz Allen Hamilton, who in May disclosed secret domestic and international electronic surveillance programmes by the US’s National Security Agency (NSA). Snowden’s leaks drew attention to two programmes in the US. The first is under the Patriot Act, which allows metadata of telephone calls of US citizens to be recorded and accessible to NSA analysts searching for links for potential terrorist threats; the second, PRISM, under Federal Intelligence Surveillance Act (FISA) Amendment Act, which permits vacuuming vast quantities of digital data including text, photographs and video content, from emails, short messaging and other private communications of non-US citizens from around the world. Snowden’s exposes were first published by the Guardian and the Washington Post. Snowden has sought temporary asylum in Russia.

After the disclosure of US spy programmes Snowden and Greenwald turned the focus on UK’s  domestic surveillance project by General Communication Headquarters GCHQ revealing that British authorities had spied on communications by national leaders present for the G-20's London Summit in 2009. Following this, the French use of electronic spying also came to light

Speaking on the nine hour detention of Miranda, the Paris-based media freedom monitor Reporters without Borders (RSF) said, “We are very disturbed by this unacceptable violation of the UK’s obligations to respect freedom of information and the confidentiality of journalists’ sources. By acting in this arbitrary way, the British authorities have just emphasized how necessary and legitimate Snowden’s and Greenwald’s revelations were.”

Among the factors that make Miranda detention troubling is the wide powers antiterrorism laws give security agencies for arbitrary detention of people at airports and almost anywhere.

Greenwald told the BBC, “They never asked him about a single question at all about terrorism or anything relating to a terrorist organisation. They spent the entire day asking about the reporting I was doing and other Guardian journalists were doing on the NSA stories.”

If the agents questioning Miranda had not questioned him about terrorism, it means that anyone travelling through Heathrow (and other international airports in the UK) the British police want to punish for some reason could be detained under anti-terror law. The criteria for being detained and harassed is not committing an act of terror or having connections to a terrorist organisation, but doing something that displeases the British political and security establishment.

According to the BBC, Miranda was stopped at Heathrow under Schedule 7 of the Terrorism Act of 2000. “Under the schedule, UK police can stop, examine and search passengers at ports, airports and international rail terminals. A passenger can be held for questioning for up to nine hours and those detained must ‘give the examining officer any information in his possession which the officer requests.’ Any property seized must be returned after seven days, but data from mobile phones and laptops may be downloaded and retained by the police for longer.” Noncooperation could result in a three-month prison sentence.

But crucially, “there is no requirement for an officer to have a ‘reasonable suspicion’ that someone is involved with terrorism before they are stopped,” as the BBC observes.  In other words, the British authorities do not have to justify what was suspicious for removing someone for interrogation.

There are clauses in place to deter arbitrary application however: the decision to apply the law should be based on “current and emerging trends in terrorist activity,” “individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected,” or “emerging local trends or patterns of travel.” Obviously these restraints were not good enough to prevent the British police from detaining Miranda.

Terrorism Act 2000, which was used to detain Miranda, was followed by a spate of other anti-terrorism legislation in the UK: the Anti-Terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005, the Terrorism Act 2006 and the Counter-Terrorism Act 2008.

In the US meanwhile, among the many shortcomings in the legislations allowing the NSA to eavesdrop, is how broadly they apply. There is very little attempt to narrow down or target potential suspects; instead the objective is to trawl for large quantities of data which nets in for NSA scrutiny the innocent as well as the guilty.

On July 17 John C Ingliss, deputy director, NSA, told a hearing of the US Congress' House Judiciary Committee about the breadth the agency’s surveillance programme by describing the accumulation of phone record data as three ‘hops.’ The Washington Post in its story on the hearing included a comment by Jameel Jaffer, deputy legal director at the American Civil Liberties Union. “[Jameel] said that the NSA has been trying to make it seem as though it peeks at the communications of a tiny subset of people, but that with such hops, it has reviewed the communication patterns of millions. ‘The first hop takes you to 100 people the person called,’ Jaffer said. ‘The second one takes you to 10,000. The third one takes you to a million.’”

So, for security establishments on both sides of the Atlantic, violating the rights to privacy, expression or movement is secondary to casting their nets wide to harass whole populations - the innocent and the guilty.  

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