Is David Miranda a Terrorist? Legally, It’s Close — Which Is Precisely the Problem

by Kevin Jon Heller

In my previous post, I mocked Scotland Yard’s assertion that David Miranda, Glenn Greenwald’s partner, committed an act of terrorism by transporting documents stolen from the US government by Edward Snowden. Mockery remains the appropriate response, given the vast chasm that separates Miranda’s actions from any defensible conception of terrorism — such as the one I quoted from UN General Assembly Resolution 49/60, “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons, or particular persons for political purposes.” Yet it is important to avoid focusing solely on Scotland Yard’s abuse of its power, because the real problem lies not with those who apply the law — whose good faith we should never assume — but with the law itself. Simply put, the UK’s Terrorism Act 2000 is so overbroad that, in fact, Miranda’s actions come perilously close to qualifying as terrorism under it. Here is the Act’s definition of terrorism:

1.—(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 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 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.

Let’s examine each of these elements. First, is transporting Snowden documents “to influence the government or to intimidate the public or a section of the public”? Not to intimidate, surely. But transporting the documents is designed to facilitate their release, and the release of the documents is indeed “designed to influence the government” — namely, to convince Britain to abandon its mass surveillance of its citizens and the citizens of other European countries. That is a noble design, but it is a design nonetheless. And the Terrorism Act 2000 does not limit terrorism to acts that seek to influence the government to adopt bad policies. That’s one of its problems.

Second, is transporting Snowden documents done “for the purpose of advancing a political,
religious or ideological cause”? Yes, of course it is — releasing the documents is designed to promote greater transparency in government and to minimize unwarranted interference with people’s privacy. That is a noble political or ideological cause, but it is still a political or ideological cause. And once again, nothing in the Act says that actions in the service of a noble political or ideological cause cannot qualify as terrorism. That’s another problem.

Third, and finally, does transporting Snowden documents “fall within subsection (2)”? It clearly does not involve “serious violence against a person” or “serious damage to property.” But the other three categories of harm are a much closer call. I do not believe that releasing the Snowden documents endangers a person’s life, creates a serious risk to the safety of the public, or is designed to seriously disrupt an electronic system. But it is very easy to imagine an overzealous prosecutor arguing that their release would do any or all of those things — particularly the final one, because the surveillance abuses revealed by the documents are all the product of electronic systems. And given that UK courts have not exactly covered themselves with glory in the terrorism context, it is also all too easy to imagine a court buying that overzealous prosecutor’s argument.

That’s it. That’s all the Terrorism Act 2000 requires. It does not require a violent act. It does not require the intent to cause terror. It does not exclude peaceful acts designed to promote progressive policy change. It does not exclude pacifist or humanist causes. It simply requires the accused commit an act that is designed to influence the government for political or ideological reasons and that directly or indirectly endangers a person, the public, or a computer system.

To be clear: I do not think that David Miranda’s actions qualify as terrorism — even under the woefully overbroad Terrorism Act 2000. In particular, I think the mere act of transporting documents is too causally removed from endangering a person, the public, or a computer system to satisfy subsection (2) of the Act. But Miranda’s actions are far too close for comfort, given the Act’s definition of terrorism — and the actions of a person who actually releases Snowden documents, such as my friend Glenn Greenwald himself, are closer still. Indeed, I find it all too easy to imagine Glenn or one of his former colleagues at the Guardian being successfully prosecuted for terrorism under the Act.

And that, ultimately, is my point. It is a serious problem that Scotland Yard believes Miranda is a terrorist. But the more significant problem is that, viewed solely in terms of the law, its position is anything but absurd. Under the indefensible Terrorism Act 2000, many actions qualify as terrorism that are not, in fact, even remotely terrorist. Perhaps even Miranda’s.

http://opiniojuris.org/2013/11/02/david-miranda-terrorist-close-precisely-problem/

5 Responses

  1. This is an excellent posting Kevin – the UK definition is ridiculous and dangerous!

  2. Thanks, Bill! Look forward to meeting you when we move to London in January.

  3. I don’t think there’s been much comment on the UK Supreme Court’s recent decision in the Mohammad Gul case. In general terms, the Court concluded that the UK’s stop and detention at borders and ports ‘represents the possibility of serious invasions of personal liberty’ (64) and struck me as a direct comment on the Miranda situation Since it had nothing to do with the case at hand.
    The Court read the definition of terrorism as ‘being very far reaching indeed’ and that this could only be changed by parliament.
    As for pacifist or humanist causes and the definition of terrorism, the Court noted that ‘activities which might command a measure of public understanding, if not support, might fall within it: for example, by the victims of oppression abroad, which might command a measure of public understanding, and even support within this country, may well fall within it.’ (29).
    Would need to think about this a while but could be that the Court here, while warning of overly broad definition of terrorism, finds that it has no power to address the matter…

  4. early UK definition of “terrorism” — any serious attempt to influence, intimidate, or oppose the King.

Trackbacks and Pingbacks

  1. […] situation. The first one is aptly mocking of the British approach to the issue and the second highlights how scarily broad the British legislation […]