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Wednesday, February 19, 2014 

The closing ranks of the secret state.

The ruling by the High Court that the detention of David Miranda under schedule 7 of the Terrorism Act 2000 was lawful is not surprising.  As we have seen so often in the past, spurious claims that national security will be endangered or that "lives are at risk" can cover a whole multitude of sins.  Schedule 7 is so broadly drafted even the government recognises it is open to abuse.  That MI5, who requested Miranda's detention, knew he was not a terrorist and also that he was not involved in espionage, despite their claim on the Port Circulation Sheet issued to the police, was also irrelevant.  The only real quandary was whether the judges would express any disquiet about the stop, perhaps even suggesting the legislation needs to be looked at again.  Not only have Lord Justice Laws, Mr Justice Ouseley and Mr Justice Openshaw done no such thing, their judgement effectively agrees entirely with the case made by the government and the security service, to the point that it seems remarkably incurious of the potential abuse of power such legislation provides the executive with.

That the justices make no mention of the fact MI5 failed to put suspected terrorism as the reason for stopping Miranda on the the first two PCSes, putting "not applicable" in the box, is indicative of itself. Only once informed by the Met that they could, err, only detain him if terrorism was indeed suspected did they do as told. The reason for stopping Miranda was two-fold: first, as now seems to be the case, neither the NSA nor our own intelligence agencies know exactly what Edward Snowden managed to take, with it being possible they will never know. Having failed to get back the files from the Guardian, with the paper opting instead to destroy the hard drives under GCHQ supervision, getting an insight from the files Miranda was transporting was the next best option. Second, just as the government had threatened the Guardian with being shut down if it continued to publish the Snowden documents, detaining Miranda doubled as a further act of harassment and intimidation against Glenn Greenwald (Miranda's partner) and the other journalists working on the stories, since detailed further by Luke Harding.

All of which makes it all the more perplexing why Justice Laws dismisses Greenwald and Miranda's witness statements out of hand and accepts those of the Met's D/Supt Stokley and D/Supt Caroline Goode, and that of Oliver Robbins, deputy national security officer at the Cabinet Office, as so compelling.  Robbins, after all, was the very individual threatening the Guardian with an injunction that would have prevented it from publishing, the government having decided the debate the revealing of the mass surveillance schemes operated by the NSA and GCHQ was over.  Neither of the statements from the police and government provide any further detail of the damage meant to have been caused by the release of the files other than the platitudes we've heard from the heads of the security services. Laws is critical of Miranda and Greenwald for not engaging with these claims, yet how are you meant to argue against such statements when either no evidence is provided to back them up, or indeed when other officials, such as the head of the D-Notice committee, are dismissive of the idea that the stories have threatened national security?

Laws in fact goes further.  He describes Greenwald's statement that "not to publish material simply because a government official has said such publication may be damaging to national security is antithetical to the most important traditions of responsible journalism" as true but trivial, due to how the defendants' evidence goes beyond mere assertions.  He then accepts completely the argument from the government and Robbins that journalists simply cannot know what will or will not damage national security when it comes to publishing such documents.  Quite apart from how the Guardian has only on one occasion not co-operated with the government in informing them of what they were set to publish, giving the security services the opportunity to object or otherwise if something was about to threaten an on-going operation, let alone lives, meaning that it is not just journalists but also lawyers and other officials involved in the decision-making, the ultimate conclusion of such an argument is that the media should never publish or reveal anything that the government says they shouldn't.  Freedom of the press it seems is entirely dispensable, regardless of the threat or lack thereof posed to the life of the nation by terrorism.  Adding insult to injury, Laws says there is no reason to doubt any of Robbins' statement.  To which you can only say: really?

This isn't just about the detention of Miranda, as Greenwald himself points out.  It also makes clear that the intelligence agencies were at the least following the movements of all those involved in the stories, if not bugging their communications.  Even if there was the belief that somehow the files they had in their possession might fall into the hands of other states or terrorists themselves, this in itself is another major step across the Rubicon.  Infiltrating protest groups, even peaceful ones, is controversial, but going after journalists is something else.

The reasoning behind this assault is clear: as the legal advice provided to MPs by Jemima Stratford QC set out, the entire system of regulation which enables Tempora and other GCHQ surveillance programmes is years out of date, and almost certainly in breach of the European Convention on Human Rights.  This lack of oversight is however exactly what sells GCHQ to the Americans, and why they are prepared to pay millions for it on top of the billions in funding it receives from the UK taxpayer.  Rather than address the revelations, from the very beginning the government has attempted to close down what little debate there has been, and shamefully it's a process that much of the rest of the media has connived in.  Now we know the judiciary is also fully on side.  How ironic it will be if it it falls to the ECHR, the supposed friend of privacy and enemy of press freedom, to strike a blow against a secret state that uses anti-terrorism legislation to intimidate those acting in the public interest.

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