What is a terrorist?

Any terrorists under my bed tonight?

On Sunday morning, David Miranda, the partner of journalist Glenn Greenwald, was detained and interrogated during his transit stop at Heathrow airport on his way to Brazil. He was detained for 9 hours under the Schedule 7 of the Terrorism Act 2000, which allows border police and immigration officers to stop anyone going through the UK suspected of being a terrorist.

Was the detention justified? Is David Miranda a suspected terrorist?

Here is what we know. Miranda was in Berlin visiting Laura Poitras, one of the people involved in the Edward Snowden affair, and his ticket was paid by The Guardian. On his way back, he was detained by Police at Heathrow for interrogation under powers against terrorism. He ws questioned and released after the 9 hours had passed. Greenwald and the Guardian have admitted that Miranda has been helping with the Snowden investigation, which means that he may have been carrying material from Poitras to Greenwald, but there is no way of knowing what that was at the time, despite of what government stooges like Louise Mensch are saying. The Metropolitan Police have stated that “Holding and properly using intelligence gained from such stops is a key part of fighting crime, pursuing offenders and protecting the public,”.

There are lots of interesting legal questions arising from this case, such as the power of the State to intervene in a legitimate journalistic investigation, and the powers awarded to law enforcement agencies to decrypt seized information. But this case rests on one very simple question, can the definition of “terrorism” be stretched to journalistic activities?

Schedule 7(2) of the Terrorism Act says:

“(1)An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).”

Section 40(1)(b) defines a terrorist like this:

“(1)In this Part “terrorist” means a person who—
(b)is or has been concerned in the commission, preparation or instigation of acts of terrorism.”

This is narrow enough. Unless we are missing a juicy bit of information, nothing that Miranda has done could even begin to indicate that he fulfils the above paragraph. However, s1 contains a much broader definition of “terrorism”:

“(1)In this Act “terrorism” means the use or threat of action where—
(a)the action falls within subsection (2),
(b)the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c)the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

(2)Action falls within this subsection if it—
(a)involves serious violence against a person,
(b)involves serious damage to property,
(c)endangers a person’s life, other than that of the person committing the action,
(d)creates a serious risk to the health or safety of the public or a section of the public, or
(e)is designed seriously to interfere with or seriously to disrupt an electronic system.”

Hackers are terrorists, but does that include journalists? Nonetheless, this is irrelevant as Schedule 7(2) contains a devilishly broad provision that might justify what happened. It says:

“(4)An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).”

Yes, you read that correctly. Border police or immigration officers are allowed to detain a person up to 9 hours regardless of any suspicion. No wonder the Police are quite confidently stating that they acted legally, you could fly a plane full of suspected terrorists through that loophole.

Some days it feels like liberty is a fiction of the past. PJ at Groklaw has even thrown the towel due to all the massive surveillance. “For me, the Internet is over”, she comments.

How depressing.