I’ve seen calls in comments thread to update this post in light of the fact that David Miranda might have been suspected of carrying stolen classified documents. But I fail to see how this is relevant given the actual facts of the case. (This should go without saying, but even less relevant is the question of whether Glenn Greenwald does too much to draw attention to himself or whether his assessments of American electoral politics are sound, or whatever.) Had he been subject to an ordinary search, or had specific items confiscated based on a warrant with individualized suspicion, then it would be relevant. But this wasn’t the case. He was detained under a broad grant of arbitrary power given by the Terrorism Act of 2000. He was detained for 9 hours even though he obviously wasn’t a terrorist suspect. This detention seems to be plausibly lawful given the breadth of the statute, which is an excellent illustration of why conferring broad authority to arbitrarily detain people on the executive branch based on promises that it will be used narrowly is a horrible idea. Anyway, this is a clear abuse of power, full stop. If there’s evidence that he was carrying stolen goods, then question or arrest him on that basis. People who aren’t terrorist suspects shouldn’t be detained under Section 7, and the possibility to use these broad provisions against dissidents is pretty obvious.
The point I’d like to add is that this is possible at all because “terrorism” is a nebulous and mostly-worthless classification system, even acknowledging that individuals and acts who uncontroversially fall under that category can and should be condemned and actively opposed by all moral persons.
Let me show what I mean by example:
1) There is a law in Great Britain (that I have just made up but might very well be true) that prohibits the unauthorized transmission of classified documents belonging to allied nations through British territory. Suspecting a foreign journalist or the associate of a foreign journalist of such smuggling, the man is detained by authorities at the airport, interrogated, and relieved of the suspected contraband.
2) A man who is indisputably a secret member of a violent group who has perpetrated and plans to further perpetrated deadly attacks on American and British soil is traveling through Great Britain. Learning of the man’s identity and membership, the British government detains and interrogates him.
3) Britain and America are at war with a third country (let’s call it Enemystan). A clandestine agent of the Enemystani government attempts to reach America via Great Britain, is discovered, detained, and interrogated.
In all three of those scenarios I think almost anyone would have trouble finding anything particularly wrong with the behavior of the British government. The problem is that none of those are what happened to David Miranda. Essentially, David Miranda was the person of interest from scenario 1 who was treated like a person in scenario 2. The issue is that it is perfectly plausible that a “terrorist,” whatever that is, exactly, could very well have an interest in obtaining classified documents of the government(s) he wishes to target and could very well be smuggling those documents through an airport, and therefore who is to say that reversing the inference – that a person so smuggling classified material is, therefore, potentially a “terrorist” – is obviously wrong?
But it is obviously wrong because in-and-of-itself the revelation of secret documents, while in some cases criminal and in some rare cases treasonous, does not constitute a “terrorist” action because there is no consensus or boundary over what a “terrorist” action is and what the legal status of a “terrorist” is, and therefore it is inherent to laws designed to stop “terrorism” – as opposed to specific, clearly-defined activities – that they are open or even prone to abuse.
If one wants to posit that individuals belonging to Al Queda or similar groups are military opponents of the United States, while that is in many ways problematic (or at least pragmatically difficult-to-operationalize in certain contexts) at least there is a coherent and agreed-upon framework for addressing that. If one wants to posit that, without creating a new, nebulous class of bad guys who somehow abandon all their rights upon arbitrary designation of bad-guy-dom, that people who break laws (like laws against killing people, for example) or engage in illegal conspiracies or serve as accomplices to law-breakers should have the full weight of law enforcement brought down upon them, then great. And if we need to find ways to accommodate the preservation of (accountable) state secrecy in the context of law enforcement, we’ll do it. But the terrorism label is fundamentally unworkable, undemocratic, and anathema to the rule of law.