Bullies of the Secret State - Why we should have every reason to be concerned about the detention of a private citizen under the 2000 Terrorism Act at Heathrow.
A spokesperson for Scotland Yard has reported: "At 08:05 on Sunday, 18 August a 28-year-old man was detained at Heathrow airport under schedule 7 of the Terrorism Act 2000. He was not arrested. He was subsequently released at 17:00."
The arrested man (and his detention, denying him the right to move freely was still an' arrest'), was the partner of the Guardian journalist who has written a series of stories revealing mass surveillance programmes by the US National Security Agency. He was held for almost nine hours on Sunday by UK authorities as he passed through Heathrow airport on his way home to Rio de Janeiro.
He was stopped by officers at 8.05am and informed that he was to be questioned under schedule 7 of the Terrorism Act 2000. The controversial law, which applies only at airports, ports and border areas, allows officers to stop, search, question and detain individuals.
The 28-year-old was held for nine hours, the maximum the law allows before officers must release or formally arrest the individual. He was released, but officials confiscated electronics equipment including his mobile phone, laptop, camera, memory sticks, DVDs and games consoles.
Since 5 June, Glenn Greenwald, his partner, has written a series of stories revealing information about the USA's electronic surveillance programmes, detailed in thousands of files passed to him by whistleblower Edward Snowden. The Guardian has also published a number of stories about blanket electronic surveillance by Britain's GCHQ, also based on documents from Snowden.
The actions of the police in arresting this man, using the powers granted under this specific anti-terror legislation, pose very serious questions about which activities should become subject to its provisions, and how the UK authorities are abusing its provisions.
An officer's power to stop, question and detain is contained in Section 2(1) which states;
"...An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b)..."
Section 40(1)(b) states that;
(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
(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.
(2)The reference in subsection (1)(b) to a person who has been concerned in the commission,
preparation or instigation of acts of terrorism includes a reference to a person who has been, whether before or after the passing of this Act, concerned in the commission, preparation or instigation of acts of terrorism within the meaning given by section 1.
So the police stopped this man because he "...appeared to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism.."
Under the act, terrorism is defined as;
"...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.
Please don't spend too much time reading these detailed provisions too closely, because on the terms under which this legislation was originally implemented, the man arrested does not fall within the definitions identified here. I have included them merely to define the provisions under which this man could be stopped and detained.
It is well to recall that this legislation was amended after the terror attacks in London in 2005, and the law which applies today reflects the changes introduced after those incidents.
It is right that the Government should have draconian powers available to them in those cases where terrorists, or those supporting them, are suspected of engaging in a very wide range of activities which could support or further a terrorist outrage. I don't believe that any right-minded person would object to this statement.
However, they have an enhanced duty off care to ensure that these powers, which strike right at the very heart of our traditional civil liberties, are not abused or used in circumstances for which their implementation was not intended, because this is an abuse of both the provisions themselves, and the powers of Parliament which took significant risks in permitting such severe laws to be enacted.
So what possible actions were being perpetrated that justified this arrest and detention?
The arrested man David Miranda lives with Glenn Greenwald, a Guardian journalist. He was returning from a trip to Berlin when he was stopped and detained.
While in Berlin, Miranda had visited Laura Poitras, the US film-maker who has also been working on the Snowden files with Greenwald and the Guardian. The Guardian paid for Miranda's flights.
A spokesperson for the Guardian said: "We were dismayed that the partner of a Guardian journalist who has been writing about the security services was detained for nearly nine hours while passing through Heathrow airport. We are urgently seeking clarification from the British authorities."
Schedule 7 of the Terrorism Act has been widely criticised for giving police broad powers under the guise of anti-terror legislation to stop and search individuals without prior authorisation or reasonable suspicion – setting it apart from other police powers.
Those stopped have no automatic right to legal advice and it is a criminal offence to refuse to co-operate with questioning under schedule 7, which critics say is a curtailment of the right to silence.
The government of Brazil issued a statement in which it expressed its "grave concern" over the detention of one of its citizens and the use of anti-terror legislation. It said: "This measure is without justification since it involves an individual against whom there are no charges that can legitimate the use of that legislation. The Brazilian government expects that incidents such as the one that happened to the Brazilian citizen today are not repeated."
"This is a profound attack on press freedoms and the news gathering process," Greenwald said. "To detain my partner for a full nine hours while denying him a lawyer, and then seize large amounts of his possessions, is clearly intended to send a message of intimidation to those of us who have been reporting on the NSA and GCHQ. The actions of the UK pose a serious threat to journalists everywhere.
"But the last thing it will do is intimidate or deter us in any way from doing our job as journalists. Quite the contrary: it will embolden us more to continue to report aggressively."
Labour MP Tom Watson said he was shocked at the news and called for it to be made clear if any ministers were involved in authorising the detention.
He said: "It's almost impossible, even without full knowledge of the case, to conclude that Glenn Greenwald's partner was a terrorist suspect.
"I think that we need to know if any ministers knew about this decision, and exactly who authorised it."
"The clause in this act is not meant to be used as a catch-all that can be used in this way."
"There is simply no basis for believing that David Michael Miranda presents any threat whatsoever to the UK government. The only possible intent behind this detention was to harass him and his partner, Guardian journalist Glenn Greenwald, for his role in analysing the data released by Edward Snowden."
And this may be where the really hidden danger inside this legislation lies. Under Section 58 of the Act it becomes an offence for anyone to collect certain information and it is this section which I suspect was used by the Police as their justification in detaining the journalist.
Section 58 states;
(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.
(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.
I have no doubt that the weasel-minded lawyers employed by the masters of the Secret State could successfully argue that the information disseminated by Edward Snowden, might fall under this section on the basis that national secrets could presumably be useful to a terrorist, and thus bring the Journalist and indeed the Guardian into conflict with the law.
I am doubtful whether the argument of Journalistic freedoms would satisfy the 'reasonable excuse' definition within sub section 3, so there seems to be little that the Guardian or their journalists can do here in the UK.
This is clearly not what was intended when the law was introduced, but it is always a problem when the secrets of the State come into the public domain. Nothing infuriates a civil servant more than the secret information which they so jealously guard should fall into the hands of the mere members of the public who pay their wages. We do well to recall that the Official Secrets Acts were designed not for the protection of State Secrets, but for State Officials!
This section was intended to apply to terrorist sympathisers who collate information or supply collateral support to the active cell. No-one ever imagined it would be used in the present situation. But yet again, the apparatchiks of the secret state have exerted their bullying tactics and abused a law in order to pressure a journalist to hand over embarrassing information.
We must hope that this law is reviewed quickly by the relevant Parliamentary committees and this provision re-defined, otherwise it will continue to be used to bring pressure on journalists in possession of information which the secret state would prefer it did not own!