Longer online version

19 February 2014

The challenge to David Miranda's Section 7 detention failed at the Court of Appeal on 19 February and is headed for the European Court of Human Rights.

The separate case against the Prism and Tempora surveillance programmes is due to be heard in July.

National security, official secrets

Humorous "undercover policeman" badges at protest café Edinburgh, 2005 © Matt Salusbury

Humorous roll of "undercover policeman" identifying badges at the heavily infitrated Forest Café, Edinburgh during the 2005 G8 protests

STATE surveillance and counter-terror powers came under investigation at a meeting called by the NUJ and others in December, with particular reference to the way they're being used against journalists.

NUJ General Secretary Michelle Stanistreet kicked off by wishing attendees a happy Human Rights Day, and by pointing out that meeting took place as "we celebrate the life of the 'terrorist' Mandela." (Margaret Thatcher dismissed Mandela's ANC as a "typical terrorist organisation" in 1987.)

Rob Evans of the Guardian noted that one of the first full-time undercover police infiltrators to be inserted into protest movements when the Met's undercover Special Demonstration Squad unit started in 1969 was Mike Ferguson, who was "sent into the anti-apartheid movement" to disrupt their demonstrations. The definition of "terrorism" has become very vague and broad.

Michelle also drew attention to the High Court challenge - supported by the NUJ - to the use of Schedule 7 of the Terrorism Act to detain David Miranda, partner of Guardian journalist Glenn Greenwald, at Heathrow as he carried material from the Edward Snowden revelations for the paper.

The incident was "a shock but not a surprise... [NUJ] members report a stepping up of stops at borders, interfering with equipment," added Michelle. The meeting also took place against a background of "ongoing restrictions on demonstrations," and shortly after NUJ member and London Student editor Oscar Webb was "bundled into a police van while covering events at the University of London" (apparently after showing police his Press Card.)

David Miranda's lawyer, Matthew Ryder QC, a counsel for Liberty, said the legal team would be putting in a claim within a week of the meeting to challenge the legality of the NSA/GCHQ Tempora and Prism programmes for the mass-surveillance of absolutely everybody. Matthew is also "working with Bindmans on many cases on convictions being overturned as a result of undercover policing".

David's case revolves around "a fundamental law... you can't take journalistic material without prior authorisation from a judge. Schedule 7 creates a legal black hole, you need no reasonable grounds for suspicion", it can "force you to answer questions, if you don't answer questions it's a criminal offence. The minute you walk through an airport you are stripped clean of that protection, we say that's wrong."

In preliminary hearings, the Government's lawyers argued David could not have the protection of journalist, as he's not a journalist himself, but "pretty soon" the court accepted that protection should be enjoyed by a "courier" or someone "working with journalistic material". The Government also said David should not enjoy the protection given to whistleblowers, because it was "stolen material" but Matthew's team argued that journalists have to be able to deal with stolen material that's "in the public interest."

The judge in the David Miranda case asked Matthew, "Who are journalists to judge what is in public interest? Our answer - of course a news editor should at times question that, [but] it is fundamental that journalists can publish something the government doesn't want." But that "doesn't mean journalists should ignore that it's classified" material, they "should take careful steps to avoid harm to anybody."

What should a journo do if they're stopped at airport under Schedule 7? Matthew advises you should "tell them you are journalist, journalists need protection, their work is the same in its importance and journalists and politicians in helping the public find out what's happening."

One member of the audience, of Baluchi ethnicity, said he'd been stopped under Schedule 7, and questions had not been about the "national security" of the UK at all, but about their political opinions, their views on Afghanistan and so on.

Les Levidow of the Campaign Against Criminalising Communities told the meeting that some Schedule 7 detainees have been "told to inform for MI5" by their interrogators and some received "threats re: their emigration status," just as in the 1970s the Prevention of Terrorism Act (PTA) resulted in " large numbers detained at ports" en route to and from Ireland, where those stopped under the Act were "blackmail to become informers." Although the number of people stopped under Schedule 7 - some 60,000 a year, each stopped for "several hours," far outstrips the frequency of police stops under the old PTA.

Then there's the Official Secrets Act 1989, Section 5. Matthew warns that the state can "prosecute non-signatories" to the Act, journalists for example. Although in these cases the burden is on the state to prove there is damage from any such revelations, while journalists have some protection and can require the prosecution to prove that actual damage has been done by a journalist's disclosure. If the official secret has already been disclosed in another country, this puts the journalists in a stronger position too.

Journalists - and in some cases publishers - are pursued under the Official Secrets Act, and there's no specific public interest defence. If you believe the material you're receiving has "come from someone who signed the Official Secrets Act in the UK" (these are usually "Crown Servants), beware!

It's not all bad, though. Matthew notes "there has been a judicial push-back" on secrecy of late.

Dr Nafeez Ahmed, environmental writer with the Guardian, investigative journalist and author of A User's Guide to the Crisis of Civilization and How to Save It, described the "securitisation process" we're seeing, in which more and more aspects of politics or day-to-day administration that were previously regarded as fairly routine are swept up into the domain of "national security," which is defined very flexibly – it has "has become a euphemism for business as usual."

At the same time, says Nafeez, there is a "corporate encroachment into national security agenda, national security is just protecting corporate entities" with the targets of surveillance in the name of "national security" now including "nursing home reform groups," with "espionage against non-profits, activists."

Kat Craig, vice-chair the Haldane Society of Socialist Lawyers and chairing the event, noted that Section 1 of the Terrorism Act included in its definition of terrorism "attempting to influence government" or to endanger life or serious damage to property. The government says you could commit an act of terrorism "accidentally, not deliberately, unknown to you inadvertently." And, asked Cat, "a fireman's strike, is that an act of terrorism?"

Kat also put the question, "is printing the story about Prism an act of terrorism?" It is "intending to influence government after all, at what point is journalism an act of terrorism?"

LFB interim LFB Branch Secretary Kevin Cahill, who was in the audience, told the meeting he'd just been to the County Court to "sue Microsoft" and seven other US corporations over their role in the alleged theft of his data which had presumably found its way to the NSA. Kevin noted that "We as journalists have failed to reach the public" in the UK, where revelations of mass-surveillance don't seem to have caused the widespread outrage they have in Germany or the US. Although Matthew warned that "by consent to licensing agreement, you sign away proprietary rights."

Rob Evans has for the past two and a half years been monitoring undercover cops in political groups. This has been going on since 1968, when - alarmed at demonstrations against the Vietnam War - the Metropolitan Police began to "gat a police officer and turn him (mostly) into an activist, send them into a group for four or five years." Said Rob, "These undercover spies are actually disrupting groups as well." (See here for much more detail on this.) Rob questioned whether this was justified - "Is this vastly too intrusive a police tactic to be using? A lot of groups that have been infiltrated were doing pretty low-level stuff."

As journalists, said Rob, "We have to challenge 'national security' at every turn." After a Cambridge student recently filmed a police officer attempting to recruit him as an infiltrator, the Guardian went to the Cambridge police who said. "don't report it... it's national security", only to withdraw this the following day.

Last modified: 02 Feb 2014 - © 2014 contributors
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