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David Miranda detention at Heathrow airport was lawful, high court rules

Three high court judges have dismissed a challenge that David Miranda, the partner of the former Guardian journalist, Glenn Greenwald, was unlawfully detained under counter-terrorism powers for nine hours at Heathrow airport last August.

The judges accept that the stop and seizure of computer material was "an indirect interference with press freedom" but says this was justified by legitimate and "very pressing" interests of national security.

The three judges, Lord Justice Laws, with Mr Justice Ouseley and Mr Justice Openshaw, conclude that Miranda's detention at Heathrow under schedule 7 of the Terrorism 2000 Act was lawful, proportionate and did not breach the European human rights protections of freedom of expression.

The ruling says that Miranda was stopped in transit between Berlin and Rio de Janeiro, after meeting the film-maker Laura Poitras, who had been involved in breaking disclosures based on documents leaked by the US National Security Agency contractor, Edward Snowden.

Miranda was carrying encrypted files, including an external hard drive containing 58,000 highly classified UK intelligence documents, "in order to assist the journalistic activity of Greenwald". The Guardian made his travel reservations and paid for the trip.

Lord Justice Laws said he noted that the seized material included personal information that would allow staff to be identified, including those deployed overseas.

Greenwald told the judges that the security services were well aware that the seized material was in connection with journalism and not terrorism.

He said that there was no evidence to indicate that any disclosure had actually threatened or endangered life or any specific operation.

"In my view, this is not surprising, given the care we took not to create such a risk," he said in his witness statement. Miranda said the material was so heavily encrypted that he was unable to open it himself.

But the judges dismissed Greenwald's claims, saying there was "no perceptible foundation" for the suggestion that they were not putting national security or lives at risk by possessing the material.

Laws accepted that agreeing not to publish material simply because a government official had said it might damage national security was antithetical to the most important traditions of responsible journalism but said this was trivial compared with the threat to security.

He went on to say that neither Greenwald nor Miranda was in a position to form an accurate judgment on the matter because they would depend on knowing the whole "jigsaw" of disparate pieces of intelligence.

Laws said he had no reason to doubt any of the evidence from Oliver Robbins, the deputy national security adviser at the Cabinet Office, that the material was likely to cause very great damage to security interests and possible loss of life.

"In my judgment the schedule 7 stop was a proportionate measure in the circumstances. Its objective was not only legitimate but very pressing," he said.

The judges also dismissed arguments from Liberty, the National Union Journalists, English PEN and others that, the schedule 7 stop and search powers are arbitrary and lack any safeguards or express protections for confidential journalist sources or materials.

They said that a claim that there should have been prior approval by a judge was "pointless and ineffective."

[Source: By Alan Travis, The Guardian, London, 19Feb14]

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Privacy and counterintelligence
small logoThis document has been published on 20Feb14 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.