Is this the end of Miranda Rights?

[imatfaal]

Firstly - excuse the title; this is to do with English Law and not with the warning given to suspects in the USA - I just couldnt resist the pun.

 

Setup

Glenn Greenwald is the reporter with the British newspaper the Guardian who has been working with Edward Snowden in publishing the files that Snowden is leaking from the NSA.

 

The English law on stopping, searching and questioning tends to be based on the idea of reasonable suspicion - ie the PC cannot search or question a person randomly or in order to ascertain if any offence might have taken place; the PC should have a pre-existing and reasonable suspicion that the person has committed a specific offence. Whilst this is broadly interpreted it does not allow for questioning based on mere hunches or guesswork. The situation in the USA is similar - but more wide-reaching; England does not have the idea of the fruit of the poisoned tree etc.

 

A few days ago the partner of Glenn Greenwald - a Brazilian National called David Miranda - was stopped at Heathrow airport, searched, and interrogated for 9 hours without access to friends, family, or most importantly legal representation. To be clear this would not be allowed under most English Law. The police believe they acted correctly due to the Terrorism Act of 2000 which allows border officials to interview in order to ascertain if a person might be a terrorist with NO prior reasonable suspicion.

 

http://www.bbc.co.uk/news/uk-23776243

http://www.theguardian.com/commentisfree/2013/aug/19/david-miranda-schedule7-danger-reporters

 

 

If journalists and their partners are to be relabelled terrorists merely for being involved in the publication of material leaked from a friendly government where will this end? It must be remembered that the UK government have used none of their considerable national security powers to block the Guardian from publishing (although they did ask for some laptops to be destroyed after the information had been moved to a secure server). It is to be surmised that the reason that only one D notice has been issued and that it seems no other government action has been taken is that the courts would become involved in any subsequent legal challenge. The courts take a much narrower and legalistic (surprisingly) view of what can be called terrorism. Thus it seems easier to avoid any judicial inspection of the need for publication versus consideration of national interest; instead go straight for the journalist and his or her family and make it clear that they will be treated as threats to national security for the future.

 

This latest development is the chilling of a supposedly free press through the intimidation and harassment of those journalists who are brave enough to publish with state whistleblowers. This would rightly be condemned by the UK Foreign Office if it happened abroad (we are very good at pointing out the flaws in others' justices systems) but it seems the new reality under this increasing authoritarian UK government.

 

 

[Delbert]

I haven't been following this business to much of a degree, but the essential point seems to me to be security and protection of the country and its citizens.

 

If it is believed that someone is out there at liberty with information believed to be contrary to a country's wellbeing, then that information has to be secured with all speed. As I think we all know, any delay these days and information can be spread all over the world very quickly.

 

It seems to me that if the authorities have reasonable suspicion of the release or otherwise of information that would derange their to the ability to protect the country and its citizens from acts of terrorism or even warfare, then its acquisition must be permitted. We might not like it, but protecting a nation and its citizens is doubtless not a polite armchair front room debating activity.

[Ophiolite]

I am not a conspiracy theorist, but if the current trend of surveillance and secrecy continues, then in fifty years time the only realistic world view will reside with conspiracy theorists.

[Cap'n Refsmmat]

I haven't been following this business to much of a degree, but the essential point seems to me to be security and protection of the country and its citizens.

 

If it is believed that someone is out there at liberty with information believed to be contrary to a country's wellbeing, then that information has to be secured with all speed. As I think we all know, any delay these days and information can be spread all over the world very quickly.

 

It seems to me that if the authorities have reasonable suspicion of the release or otherwise of information that would derange their to the ability to protect the country and its citizens from acts of terrorism or even warfare, then its acquisition must be permitted. We might not like it, but protecting a nation and its citizens is doubtless not a polite armchair front room debating activity.

We allow free expression and a free press because of the benefits they bring a free society, despite knowing that occasionally they will be used to do things we personally do not like. That is a necessary part of the tradeoff: allow free speech and association and you'll end up with the Westboro Baptist Church, spouting homophobic bigotry in front of funerals. We don't rewrite the laws to ban the free expression we don't like, because that defeats the whole purpose.

 

Instead, court supervision exists to allow us to limit freedoms while maintaining appropriate controls on police power. But Section 7 allows the police to detain travelers without any warrant, probable cause, or judicial oversight -- they can simply say "I don't like you" and invent an excuse.

[John Cuthber]

I haven't been following this business to much of a degree, but the essential point seems to me to be security and protection of the country and its citizens.

 

If it is believed that someone is out there at liberty with information believed to be contrary to a country's wellbeing, then that information has to be secured with all speed. As I think we all know, any delay these days and information can be spread all over the world very quickly.

 

It seems to me that if the authorities have reasonable suspicion of the release or otherwise of information that would derange their to the ability to protect the country and its citizens from acts of terrorism or even warfare, then its acquisition must be permitted. We might not like it, but protecting a nation and its citizens is doubtless not a polite armchair front room debating activity.

You seem not to have noticed that the guy isn't a terrorist and there was no evidence suggesting that he was, so using anti-terrorist legislation is inappropriate.

Ironically, they used the counter-terrorist laws as a terrorist act against a journalist.

 

Also, remember the guy got the (alleged) information from somewhere.

Wherever he got it from there were other people with that information.

Why not detain them in the same way.

You probably think that's silly- after all, it's the military's job to have information.

OK, fair enough.

But it's also a journalist's job too.

 

Since thus guy had the data, it's clear that it was already "not secured", so he's the symptom, not the cause.

 

You don't improve a country's well-being by turning it into a police state.

.

[Delbert]

 

Instead, court supervision exists to allow us to limit freedoms while maintaining appropriate controls on police power. But Section 7 allows the police to detain travelers without any warrant, probable cause, or judicial oversight -- they can simply say "I don't like you" and invent an excuse.

So, presumably if you believe someone has possession of material that if not secured may well derange your activities in protecting the country and its citizens, but there's no evidence to satisfy a brief or arrest warrant or any other civil arrest process other than emergency authority offering you unlimited power, you'd say: hay-ho that's life, we can't do anything about it.

 

I'm just trying to imagine the situation whereby someone is believed to have information about a suitcase nuclear weapon held somewhere in London (UK) and its timing. But no evidence sufficient to satisfy due legal process, you understand. Presumably the due process is to just forget about it.

 

Ultimate power has to be available; if it's not we lay ourselves open who knows what.

 

The only experience I've had is being apprehended by the constabulary. And quite right to, as my actions may well have given the impression I could have been up to no good. I just let them do their job, and the plain fact I was just going about my innocent business manifested itself in the fullness of time, and all was well. Was I annoyed? Certainly not. In fact quite the contrary, I was greatly reassured that the boys in blue were on-the-ball and keeping us all safe.

[John Cuthber]

If you have valid evidence you can get a court order pretty quickly.

However in this case they had plenty of time to do the right thing (if they thought he had sensitive information illegally, they should have arrested him for getting it )

But they chose, premeditatedly, not to do that, but to abuse their authority.

 

But read through what you said again

" if you believe someone has possession of material "..."but there's no evidence to satisfy a brief or..."

Well, if the counter terrorist authorities believe stuff for which there's no valid evidence then perhaps they should be locked up- for their own safety.

"Ultimate power has to be available; if it's not we lay ourselves open who knows what."

Yes, for example someone could introduce arbitrary arrest by pretending its a counter terror precaution.

"who knows what" has already arrived.

 

BTW, have you seen the other half of this story?

Form

http://www.theguardian.com/commentisfree/2013/aug/19/david-miranda-schedule7-danger-reporters

 

 

"And so one of the more bizarre moments in the Guardian's long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian's basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. "We can call off the black helicopters," joked one as we swept up the remains of a MacBook Pro."

We are leaving decisions about national security to people who think destroying a hard drive (from which they know that the data has already been transferred) will achieve anything.

Edited August 22, 2013 by John Cuthber

[imatfaal]

...snipped

We are leaving decisions about national security to people who think destroying a hard drive (from which they know that the data has already been transferred) will achieve anything.

 

Exactly - I was about to launch off on this as well but decided post was getting too long. The abiding message was that our security apparatus and the oxymoronic brigade seem to think that intimidating journalists and destroying worthless hardware is the route to take for counter terrorism and protection of the nation. It is so like the days of soviet secret rule - swingeing powers abused with gay abandon allied with breath-taking incompetence and small-mindedness.

[Delbert]

If you have valid evidence you can get a court order pretty quickly.

As far as I understand he was changing planes. It seems to me that any court order would possibly have to be obtained at the speed of light.

 

But read through what you said again

" if you believe someone has possession of material "..."but there's no evidence to satisfy a brief or..."

Well, if the counter terrorist authorities believe stuff for which there's no valid evidence then perhaps they should be locked up- for their own safety.

But read through what I said again.

I didn't say 'valid' evidence. I said evidence to satisfy a brief. That's a mile away from 'valid' evidence.

 

Gathering evidence presumably has to start somewhere, possibly following up suspicious activity. But if the consequences of that suspicious activity is subject to time (changing planes for example. Or a bomb likely to go off), then it seems to me that time is of the essence.

 

From what I understand there was a suspicion of classified information in the wrong hands. And from what you appear to be saying I gather suspicion is no reason for apprehending an individual, whatever the criticality in time there may be. That's fair enough. And if that's the general view then that must be the path taken (I'm an advocate of democracy). But all I'd say, and heaven forbid, should there a be consequence involving damage or loss of life then I for one don't want to hear: why didn't they know about all this going on and did something about it?

 

And regarding the current news event, I understand that according to latest media reports the custodians of the law are considering criminal acts. If that's the case (yes, I know news reports are only news reports), then the suspicions were correctly founded and the security of the nation was at risk.

[John Cuthber]

"I didn't say 'valid' evidence. I said evidence to satisfy a brief. That's a mile away from 'valid' evidence."

Not from the brief's point of view.

And, btw, it's not a brief you need to convince, it's a beak.

 

"Gathering evidence presumably has to start somewhere, possibly following up suspicious activity. But if the consequences of that suspicious activity is subject to time (changing planes for example. Or a bomb likely to go off), then it seems to me that time is of the essence."

They knew about his travel plans in advance.

While he was on the flight in to the UK they would have had plenty of time to get a warrant.

But, because they knew that their purpose was harassment, rather than law enforcement, they didn't do that.

 

"And regarding the current news event, I understand that according to latest media reports the custodians of the law are considering criminal acts."

The custodians of the law were committing criminal acts (in my opinion- that issue is still sub judice) so I guess it's fair to say they considered them first.

 

" If that's the case (yes, I know news reports are only news reports), then the suspicions were correctly founded and the security of the nation was at risk."

The security of the nation is plainly at risk if the officers of the law are acting illegally. I guess we will have to wait for the outcome of the legal process before we know that.

 

Incidentally, the police may well demonstrate that the guy had "classified information" or whatever.

That's a whole different kettle of fish from proving that he was intending to publish it (which would, of course, be a criminal offence)

 

 

Incidentally, here's how the story is panning out so far

"Lord Justice Beatson and Judge Kenneth Parker issued an injunction blocking the government from using or sharing material seized fromDavid Miranda at Heathrow on Sunday in a criminal investigation – half an hour after a Metropolitan police lawyer announced the force had launched such an investigation."

 

"The Met said it was pleased by the ruling."

Yeah, right.

[Delbert]

"They knew about his travel plans in advance.

While he was on the flight in to the UK they would have had plenty of time to get a warrant.

But, because they knew that their purpose was harassment, rather than law enforcement, they didn't do that."

Presumably you know all this. As for the harassment bit, without support that is an outrageous statement. And unless you have inside knowledge or even evidence, I suggest it is withdrawn.

 

"The custodians of the law were committing criminal acts..." Ditto above.

"Lord Justice Beatson and Judge Kenneth Parker issued an injunction blocking the government from using or sharing material seized..." Well, if it isn't their material that's okay. But if it is the government's own classified material, I can't see it applies. It seems it probably just stops them using anything other than their own classified, or unclassified, material.

 

On a general point, I for one have no problem with authorities acting in whatever way they need to protect the nation, its citizens at home and abroad, its agents and all those involved in obtaining information hazardous to its citizens. I'm not saying they do, but should they stretch the rule of law on occasions (I'm not saying that in this case), within limits, I've no problem with that. Maybe that's where we differ, so I'll leave it there.

[John Cuthber]

"Presumably you know all this."

It's a matter of record that they knew in advance and even contacted government officials in the UK and US and discussed it.

So, the idea that they didn't have time to get a warrant isn't tenable.

Once you rule that out you need to look for other explanations for their actions.

Feel free to offer one.

As for withdrawing my assertions , no thanks, I'm sticking with a "fair comment" defence on the basis that I have reasonable grounds to believe that they are true.

 

There are investigations underway at the moment looking into what happened. Perhaps we should wait until those are concluded.

 

 

 

"On a general point, I for one have no problem with authorities acting in whatever way they need to protect the nation, its citizens at home and abroad, its agents and all those involved in obtaining information hazardous to its citizens."

Nor have I, but that's not what they were doing in this case.

 

" but should they stretch the rule of law on occasions (I'm not saying that in this case), within limits, I've no problem with that. "

So, you have no problem with people whose job is to enforce the law not sticking to the law themselves.

Well, I guess you are entitled to that opinion.

[imatfaal]

snipped...

 

On a general point, I for one have no problem with authorities acting in whatever way they need to protect the nation, its citizens at home and abroad, its agents and all those involved in obtaining information hazardous to its citizens. I'm not saying they do, but should they stretch the rule of law on occasions (I'm not saying that in this case), within limits, I've no problem with that. Maybe that's where we differ, so I'll leave it there.

 

That's the end of the rule of law - arbitrary justice is no justice at all, it is merely the strong enforcing their desires on the weak. Even with right-minded officials who will strive to do what is best - we should not be left in a position in which we rely on the probity of our officials for maintenance of our rights and freedom; it is for that very cause that we have the rule of law. I will dig out the original quote by an old US president who said preceding in a much neater way than me

[Delbert]

 

" but should they stretch the rule of law on occasions (I'm not saying that in this case), within limits, I've no problem with that. "

So, you have no problem with people whose job is to enforce the law not sticking to the law themselves.

Well, I guess you are entitled to that opinion.

Again, I think you are misreading my comments. I didn't say or infer not sticking to the law, I said stretching the rule of law. Perhaps I should've used something like interpreting the law to one's advantage or something like that.

 

 

That's the end of the rule of law - arbitrary justice is no justice at all, it is merely the strong enforcing their desires on the weak.

Again, I didn't say arbitrary justice. As I think we all know, the law is written down and as hard as they try it's effect isn't really known until it is tested in court. Interpretation was what I was hinting at.

 

I'm sorry, but the intense and overweening protestations by the relevant newspaper seems to me to infer there's a hint of fertilizing underpants. If they take the view that what the authorities did was wrong, then just calmly, coolly and quietly set about taking the appropriate legal redress. Perhaps as we all know, the likely outcome of public protestations and statements is to weaken any future legal action or court case.

[John Cuthber]

Can you please learn the difference between infer and imply or, alternatively, stop using words that you don't know the meaning of (see discussion of "brief" and "beak" above.)

 

If you allow people to interpret the law as they please then you have introduced arbitrary justice.

 

Re. "just calmly, coolly and quietly set about taking the appropriate legal redress."

Have you forgotten that the business of newspapers is to report matters of public interest (for example the authorities apparently abusing their power).

​It would be negligent of them to take the action you have suggested.

[Delbert]

If you allow people to interpret the law as they please then you have introduced arbitrary justice.

How else would you decide how a particular law affects us other than by construing the significance of, or clarifying the meaning, or to convey or represent the spirit or meaning (definition of interpret)? Spirit! Now there's another word for you to apply 'arbitrary' to.

 

As for the legal redress and newspaper reporting what is called news, from what I saw on the televised news it wasn't a report, more like a clear accusation from a self constructed high altar of moral rectitude.

 

On a different tack, and as I tried to infer, if the guy was carrying nothing more than newspaper articles or information appertaining to, or even personal items, I can't see what all the fuss and objections he had were all about.

 

But if the authorities had exceeded there authority such for some legal reason he was outside their remit, perhaps it was because it might be the official secrets act only applies to those who have signed the thing. I'm not sure about that, so perhaps others know better. But if it is, then the conclusion might be that once documents escape and end up outside their control, there's a bit of a problem. If that's right then the law needs attention.

 

But in the meantime, if the authorities simply let these things go (as seems to be the only conclusion if an arrest warrant was needed and wasn't obtained) and consequences followed, then clearly, they would be culpable. Possible and justifiable public outrage may even follow such consequences. Especially if loss of life was the result.

 

If the authorities did go above the law, then the law is inadequate. But should state secrets be involved then I for one remain undisturbed if they acted outside it to secure them. On this point we clearly diverge.