The official in the United Kingdom, who is tasked with reviewing terrorism legislation, has released a report warning about the breadth of terrorism laws and how they could be used to criminalize journalism.
Citing the case of David Miranda, journalist Glenn Greenwald’s husband who was detained at Heathrow Airport under the UK’s Terrorism Act of 2000 last year, David Anderson QC recommended changing the definition of terrorism in the law.
Miranda was stopped on August 18, 2013, and held in detention for nearly nine hours under a section of the Terrorism Act. MI5 believed that Miranda was “involved in espionage activity which has the potential to act against the interests of UK national security.” In less sensational terms, British intelligence believed he was carrying documents from NSA whistleblower Edward Snowden.
The police initially did not think MI5 had clearly justified that there was a lawful basis” to use this law to detain Miranda. MI5 adjusted its reason for stopping Miranda:
We assess that MIRANDA is knowingly carrying material, the release of which would endanger people’s lives. Additionally the disclosure, or threat of disclosure, is designed to influence a government, and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under Schedule 7.
Miranda has been pursuing a legal challenge to his detention, which is currently on appeal. As a result, Anderson indicated his reluctance to comment in more detail on Miranda’s case and its implications.
Nevertheless, Anderson appropriately notes what he calls the “true issue”—”whether it was lawful to use counterterrorism law” for the purpose of stopping Miranda on “the basis of the sort of intelligence they were given” on Miranda.
“By validating that course, on the basis of orthodox principles of construction, the Divisional Court highlighted the remarkable (and some would say alarming) breadth of the UK’s current definition of terrorism,” Anderson suggests.
Most alarmingly, the Miranda judgment revealed “the publication (or threatened publication) of words may equally constitute terrorist action,” according to Anderson’s review. That is because the “writing of a book, an article or a blog” could be terrorism under the law if it was published “‘for the purpose of advancing a political, religious, racial or ideological cause’, ‘designed to influence the government’ and liable to endanger life or create a serious risk to health or safety.”
Anderson contends that “possession of any article for a purpose connected with the publication” or of any “documents likely to be useful to persons publishing material of that kind” could result in someone being sentenced to prison for ten to fifteen years. “Acts preparatory to publication” could result in “life imprisonment.” So, for example, someone in the UK who did what Snowden did could be imprisoned for life for intending to have this information published.
“Anyone who encouraged the writing of similar articles or circulated such encouragement to others could be imprisoned for up to seven years,” according to Anderson.
Even more remarkable, the news organization involved could be considered an “organization concerned in terrorism,” making it a “criminal offense to be employed by it or to fund it.” In other words, anyone employed or funding could be accused of “material support for terrorism.”
“Both the newspaper and its journalists could be designated under the asset-freezing legislation, rendering it a criminal offense to make funds, financial services or economic resources available to them without a license, if the Treasury judged this necessary to protect the public from similar ‘terrorist’ activities,” Anderson further suggests.
It does not matter if no persons in the British government would use the law in this totalitarian manner to target media organizations right now. Anderson points out, “To bring activities such as journalism and blogging within the ambit of “terrorism” (even if only when they are practiced irresponsibly) encourages the ‘chilling effect’ that can deter even legitimate enquiry and expression in related fields.”
Anderson recommends that the “terrorist label” be reserved for actions “aimed at coercing or undermining the government” and not for those acts aimed at influencing government for “political reasons.” This includes publications the government is convinced will “jeopardize life, health or safety.”
He also recommends that the government narrow the definitions of “terrorist activity” and “terrorism-related activity” in two of the country’s recent statutes.
The definition employed currently is “unduly restrictive of political expression” to Anderson. “Influencing governments, whether at home or abroad, is the legitimate aim of all political activity including demonstrations, marches, writing and speech.”
“It is unsafe to allow politically-motivated actions to be classed as terrorism merely on the basis that someone in authority considers them liable to endanger life or create a serious risk to the health or safety of the public,” Anderson declares. “Such a broad definition assists nobody, save the true terrorists whose constituency of sympathizers is swelled by a law which can be easily portrayed as excessive.”
Once again, as Anderson recognizes, “Even if the strong anti-terrorism powers are never used up to their limits, uncertainty as to where those limits lie, coupled with understandable fearfulness of being branded a terrorist, could deter people even from activity falling outside their range.”
“When those people are journalists, bloggers or simply outspoken citizens, the consequence is to chill the free expression of political opinion – the lifeblood of a free society,” Anderson adds
In conclusion, Anderson’s review clearly shows anyone engaged in journalism on sensitive “national security” issues will want to avoid the United Kingdom entirely when traveling and refuse to visit the country because doing so may risk the possibility of being inappropriately targeted under terrorism law.
One quick note about the United States should be made when considering the powers in this terrorism law. None of what Anderson raises in his review will be viewed as objectionable by President Barack Obama’s administration. There will be no expressions of concern. The NSA and other US intelligence agencies appreciate the lengths to which the UK government will go to protect their interests by targeting individuals like Miranda.
The Associated Press reported recently on emails they obtained through the Freedom of Information Act, which showed the NSA considered it “good news” that GCHQ had the hard drives of The Guardian destroyed. Director of National Intelligence James Clapper was updated before the destruction took place.
No matter how the United Kingdom seeks to apply its broad terrorism laws, it will stand firmly behind the UK because the country is following the example of the US and waging the kind of unrestrained war on terrorism the government seeks to maintain each and every day, even when there are political concerns that require some restrictions to be adopted.