When Terror and Journalism Collide: A Critique of the UK's Overreach of Power in the Name of National Security

Author:Kayla Bell
Position:Is a 2015 graduate of Emory University School of Law
Pages:891-931
e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2014 e Institute for Migrant Rights Press
891
e author thanks her advisor, Charles A. Shanor, for his guidance in writing this article.
WHEN TERROR AND JOURNALISM COLLIDE
A CRITIQUE OF THE UK’S OVERREACH OF POWER IN THE NAME OF
NATIONAL SECURITY
KAYLA BELL
Emory University School of Law
E-mail: kay.r.bell@gmail.com
A routine layover at London’s Heathrow Airport could become the driving force
behind changing a country’s anti-terror laws that have been in place for more than
a decade. On August 18, 2013, authorities detained David Miranda, who was
assisting e Guardian newspaper in reporting on Edward Snowden’s controversial
National Security Administration leaks. Authorities held Miranda for nine hours
and conscated his source material under authority of the Terrorism Act 2000.
Subsequent U.K. court decisions found the detention to be lawful and in accordance
with international norms of freedom of expression. However, a few years earlier, a
similar case arose in the U.K. that also pitted the Terrorism Act against a journalist’s
material. In that case, U.K. courts also found no breach of freedom of expression,
but the European Court of Human Rights wholly disagreed. e European court’s
decision ultimately led to the U.K. changing parts of its Terrorism Act.
is article will argue that, in light of Miranda’s recent detention, the U.K. needs
to undertake further changes to its Terrorism Act in order to be compatible with its
commitment to international norms of freedom of expression. I will demonstrate how
the U.K. domestic courts have routinely been unable or unwilling to acknowledge
abuse of freedom of expression in the name of national security and will oer
recommendations on how the U.K. can tighten its terror laws to be more compliant
with the fundamental right of free speech.
Keywords: Law and Media, Journalism, Terrorism, Human Rights, Civil Rights,
Freedom of Expression.
The Indonesian Journal of International & Comparative Law Volume I Issue 4 (2014) at 891–931
Kayla Bell
892
I. INTRODUCTION: A JOURNALIST’S
DETENTION
On August 18, 2013, authorities at London’s Heathrow Airport detained
a young man without articulating reasonable suspicion, and they refused
him the right to remain silent or have access to an attorney.1 Nine hours
later, the authorities would allow the man to return to his home in Rio
de Janero without charge, but not before they seized his mobile phone,
laptop, camera, memory sticks, DVDs and gaming consoles—all of which
ocials are authorized to do under Schedule 7 of the United Kingdom’s
Terrorism Act 2000.2 e world would later nd out that the man is
28-year-old David Miranda. He is the partner of Glenn Greenwald, a
journalist at e Guardian who has written a series of exposés on the
United States National Security Agencys controversial surveillance tactics,
as revealed in documents leaked by former CIA and NSA employee
Edward Snowden.3 e Guardian nanced the trip that led Miranda
to the layover at Heathrow, where he was detained after a meeting with
another well-known journalist who is also working on NSA stories.4
A month earlier, e Guardian used angle grinders and other tools to
destroy hard drives and memory chips on which journalists had stored les
relating to the surveillance leaks.5 Representatives from the Government
Communications Headquarters watched over the destruction.6 e
Guardian revealed it destroyed the les, which were backed up outside
of the U.K., after the government repeatedly threatened legal action or a
police raid.7 Newspaper editors said they would rather destroy the les than
1. Glenn Greenwald’s partner detained at Heathrow airport for nine hours, T
G, Aug. 19, 2013, http://www.theguardian.com/world/2013/aug/18/
glenn-greenwald-guardian-partner-detained-heathrow.
2. Id. Schedule 7 allows these stop and search powers for the purposes of determining
if someone is a terrorist. Terrorism Act 2000, Schedule 7.
3. Id.
4. Id. Miranda was in fact carrying highly-encrypted data stolen by Snowden from
the NSA. e data included U.K. intelligence material. Miranda v. Secretary of
State, [2014] [8] EWHC 255.
5. Julian Borger, NSA Files: Why e Guardian in London Destroyed Hard Drives
of Leaked Files, T G, Aug. 20, 2013, http://www.theguardian.com/
world/2013/aug/20/nsa-snowden-les-drives-destroyed-london.
6. Id.
7. Id.
Kayla Bell
When Terror and Journalism Collide: A Critique of the UK’s Overreach of Power in the Name of National Security
893
reveal their contents or any forensic information that could put journalists
or sources at risk of exposure.8 e Guardian continues reporting on the
surveillance leaks from the U.S. and Brazil.9 Miranda brought suit in the
U.K. claiming authorities abused their Schedule 7 powers and that the
Schedule 7 powers are incompatible with human rights.10 On February
19, 2014, the U.K. High Court dismissed Miranda’s suit, nding his
detention lawful under Schedule 7. Meanwhile, U.K. authorities are
considering charging e Guardian with a criminal oense under Section
58A of the Terrorism Act, which makes it a crime to publish information
about members of the military or intelligence services.11
Against the backdrop of Snowden’s leaks, the threats against e
Guardian and Miranda’s widely-reported detention, the world began to
take a hard look at the U.K.’s sweeping terror laws. Word spread that
the U.K. had utilized its broad Schedule 7 powers to detain 61,145
people the previous year.12 Of those stopped, only 1.2% were held for
more than three hours, while Miranda was held for the maximum time
allowed by law.13 is led to a member of parliament conceding, “It’s
almost impossible, even without full knowledge of the case, to conclude
that Glenn Greenwald’s partner was a terrorist suspect.”14 Upon the
dismissal of Miranda’s case, Greenwald reected on what he considers
the U.K.’s historical persecution of journalists in the name of national
security, saying, “It’s not surprising they would equate journalism with
terrorism.”15
e sentiment in the U.K. was similar to that surrounding another
controversial section of the Terrorism Act that had arisen a few years
8. Id.
9. Id.
10. R v. Home Secretary: Today’s Hearing, HL., Oct. 30, 2013, http://
www.headoegal.com/2013/10/30/r-miranda-v-home-secretary-todays-hearing/.
11. British News Sta May Face Terrorism Charges Over Snowden Leak, R, Dec.
3, 2013, http://www.reuters.com/article/2013/12/03/britain-snowden-guardian-
idUSL5N0JI40T20131203.
12. Id.
13. Id.
14. Id.
15. Paule Vale, Glenn Greenwald Lambasts U.K. High Court for Dismissing Challenge
of David Miranda Detention, T G, Feb. 19, 2014, http://www.
huffingtonpost.co.uk/2014/02/19/glenn-greenwald-uk-high-court-david-
miranda-_n_4817111.html.

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