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Shining a Light Across the Water

Were David Miranda anyone other than Glenn Greenwald’s husband his detention wouldn’t have set off any alarms. Under Schedule 7 of the Terrorism Act of 2000, the UK government has the authority to examine anyone suspected of terrorism for 9 hours. According to the Home Office anywhere from 70,000 to 90,000 people are examined per year under the authority granted by Schedule 7. Out of a total of over 200,000 detentions since 2009 the Home Office admits to making only 20 arrests and obtaining 7 convictions.

Despite nearly a quarter million people being subjected to this procedure in the last 3 years it took the detention of a high-profile journalist’s partner to bring the absurdity of the law into focus. This is worrying, and it’s bigger than simply a hamfisted attempt at intimidation. Simply put: Europe and the UK in particular have a problem with “public interest” laws.

Whenever the debate over electronic surveillance or terrorism law comes up, a point I’ve tried to make repeatedly is that there’s a certain myopia associated with debates that focus solely on US counter-terrorism policies. I will not dispute that there are substantial problems with the policy apparatus and oversight mechanisms in the US government’s surveillance structure. What gets left out of these debates is the present state of the rest of the world, whether the quasi-authoritarian states like Russia or China, or with the shining beacon of human rights that’s the European Union.

The reality of how the European Convention on Human Rights and the greater European project treat civil liberties and human rights is substantially more complicated. Article 8 of the European Convention on Human Rights guarantees the right to privacy with the following proviso:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Read that one again. You will note that the language of Article 8, Section 2 is extremely broad. This provides substantial latitude to national authorities. The European Court of Human Rights has granted this latitude on several occasions such as Klass v. Federal Republic of Germany and the more recent Kennedy v. United Kingdom where surveillance laws were considered to be lawful despite violating the rights of the applicants. In cases where the ECHR had ruled against a state (most notably Malone v. United Kingdom) subsequent legislation has been shown to satisfy the “accordance with the law” section of Article 8.

What is interesting about the Convention is the degree to which it provides “outs” to states on what are supposedly fundamental human rights. We have everything from a public safety/insurrection exemption on use of force, to the possible derogation of those rights in war time. The only rights that don’t have a counter-provision are the rights to marry, effective remedy, freedom from discrimination and the prohibition on torture.

The different emphasis between the Convention and the US Bill of Rights is an illustrative example of how certain rights viewed as fundamental to a US citizen like assembly or expression, are considered more along the line of privileges with associated responsibilities in much of European society. Although the concept of freedom of expression or assembly in an American definition has largely been internalized in European culture, the legal definitions remain somewhat mired in a state-centric society model from the late 19th century.

These differences are often chalked up to the differences between a continental legal tradition and a common law tradition, but a cursory examination of the UK’s own legislative history suggests that the Atlantic Ocean rather than law code is the fundamental divide on considerations of communication and privacy. Both in terms of surveillance and counter-terrorism policy, Parliamentary supremacy and the limited strength of judicial review have allowed the UK to institute a much stronger surveillance state, censorship regime and detention system than the US has been able to impose on its own citizens.

The longer history of Europe’s struggle with terrorism also explains some of the public interest provisions. While terrorism as an external threat to the US is relatively new, European states have been struggling with some form of internal dissent or the other since the 19th century. The Irish question for the British, the various national separatist movements in Spain, the Red brigades in Italy are all examples of problems that have usually resulted in some sort of asymmetric warfare or terrorism. The result has been a cultural more tolerant of the need to maintain internal security and somewhat more blithe to the daily intrusions inherent in such regimes.

All this is not to say that the European project is the only one with problems or that the US is beyond criticism. But we need to realize that the debate to have about the Terrorism Act of 2000 in the UK is one that’s centered around a broader national security state structure in Europe which is, in its own way, as pervasive and intractable as the US national security state.

EDIT:
Since there’s been some interest in the practical applications of the relatively draconian nature of UK press and secrets law, here’s a link to the Guardian’s story on their own struggle with Sarah Tisdall’s leaks back in the golden days of Thatcherite Freedom.

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19 thoughts on “Shining a Light Across the Water

  1. I don’t have time to read & comment now, dinner’s nearly on the table.

    But I’ve missed you. Welcome back. The day’s a bit better then it was, and it was pretty wonderful already!

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    • Awesome, Nob.

      I very much appreciate that you gave this context:

      Under Schedule 7 of the Terrorism Act of 2000, the UK government has the authority to examine anyone suspected of terrorism for 9 hours. According to the Home Office anywhere from 70,000 to 90,000 people are examined per year under the authority granted by Schedule 7. Out of a total of over 200,000 detentions since 2009 the Home Office admits to making only 20 arrests and obtaining 7 convictions.

      a potential of holding people for 810,000 hours; at its maximum, that’s 33,750 days or 365 years worth of time for seven convictions.

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  2. “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

    In other words: Any damn time we want to.

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  3. I tend to focus my thinking on the PATRIOT Act and its cousins in U.S. law. That’s because those are the laws that strike closest to home for me. Now that this has happened, I can understand Greenwald taking a harder and closer look at UK and EU laws.

    Similarly, while the fact that Mr. Miranda is Mr. Greenwald’s husband has been the headline-grabber, it’s easy to forget that Mr. Miranda is a journalist in his own right, and any time a democratic government subjects a journalist to the criminal process for his work, there’s a whole suite of concerns implicated: liberty, free speech, informing the electorate of governmental activity, and due process — in addition to whatever legitimacy the investigation into criminal activity might “objectively” have and the uniqueness of the journalist’s ability to illuminate matter of interest to the authorities or the possibility the journalist is actually involved somehow. That’s a case-by-case analysis, unfortunately. In this case, it’s hard to imagine how someone made this call: the vanishingly small likelihood that Miranda is a terrorist himself or has unique information relevant to a critical criminal inquiry (his source told him when and where the bomb would explode) compared to the obvious high profile of this particular person.

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  4. Nob:

    First, this a great, extremely helpful post.

    Second, a question that’s been bugging me even more than the other questions with respect to this particular matter:

    I understand that Schedule 7 is worded in such a way as to make it extraordinarily easy to get detained for little reason whatsoever, and that such decisions are typically made at a low level, though I’m exceedingly skeptical this particular decision was taken at a low level and thus I have a hard time thinking that this wasn’t done in part to intimidate Greenwald for practicing journalism.* But what I don’t understand is how the British authorities are able to justify permanently taking Miranda’s computer, etc. Yes, the Brits protect classified information just as every other government does, but to my knowledge, not a lot of countries have laws that protect the secrets of other countries. So that’s my question – what is the authority for taking Miranda’s computer here?

    *The odds of this particular person getting popped without having gotten a tipoff from someone in the US Government – and then being detained longer than almost everyone else who gets detained – are extremely long; Heathrow alone handles about 70 million passengers a year, so even if everyone who got detained under Schedule 7 was detained at Heathrow, the odds of this happening randomly would still only be about 1/10 of a percent.

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    • My understanding is that the British authorities actually need to return Miranda’s items within 7 days of his detention. The law is (from what I can gather) meant to allow temporary confiscation to determine if the contents of say electronics might contain something of use.

      Also, bear in mind that the information and publications that the Guardian have run have included the operations of the British sig-int organization in the GCHQ. I think that plus the “information useful to terrorists” clause from the Terror Act were the likely justifications used by Scotland Yard to declare that their search and confiscation of Miranda’s items was in accordance with law.

      The Guardian’s actually been forced to do revelations of leaked documents per the Official Secrets Act before. The rationale of publishing through a British paper actually eludes me a bit. If I were asked what country to avoid publishing this sort of story in (in terms of places with press freedom sufficient to get the story through without pre-clearance) the UK would be at the top of such a list. (Especially when the GCHQ stuff was involved)

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      • Thanks for the clarification, Nob.

        I’m guessing here, but it seems to me that the reason he chose the Guardian was that, after getting rejected in his approach to the Post, et al, Greenwald would be at the top of the list of people who any civil libertarian would be likely to reach out to; since Greenwald has a column for the Guardian, the Guardian would then become the default news organization to publish it.

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      • Well, the main reason I’m surprised is that the Guardian’s been in this sort of situation before and were forced to back down. One of the more famous cases of UK media prosecution was the 80s case of Sarah Tisdall where the Guardian was forced to hand over photocopies of classified documents leaked by a FSO. The Law Lords upheld the ruling and it led to Tisdall’s identification and arrest. (The whole incident was probably cheerleaded by the same Andrew Sullivan claiming Britain is just as bad as Russia, seeing as how it happened in Thatcherite England)

        Britain’s got some seriously draconian press freedom laws that allow them to do all sorts of things to newspapers that wouldn’t happen in the US. A little due diligence would reveal that, and either Greenwald got sloppy and decided to bring in GCHQ without recalling that, or he intentionally threw it out there to get the UK government to crack down on him in some fashion. (Given that he basically sent his husband out as a document mule, a cynical part of me thinks it’s the latter)

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  5. Nob Akimoto
    “No, from what I recall they actually used provisions of this law against Iceland over the bank creditors mess.”

    But not against their own lords and masters UK bankers.

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