Detention

When I was in school in the 1960’s, detention was what happened to you if you attempted to imitate farting when the French teacher was writing on the board, and he figured out it was you. You spent forty-five minutes after school in a classroom with, quite deliberately, nothing to do.

It turned out to be extremely useful. You learnt thereby how not to be bored, that your own head and its thoughts could keep you occupied.

Next day came the task of analysing with your pals the reason written out by the French teacher, very good training in critical thinking. “Audible expulsion of air through an inappropriate orifice”. That couldn’t be right – burping would have been OK? Must train that ….. “Deliberate audible expulsion of air through a bodily orifice”. That can’t be right either. If you just have to fart, then it can be very uncomfortable if you don’t, as we will advocate to our spouses sixty years later when they note the grandchildren are present. And what if you just failed to make it quiet, even though you tried? There was an unwritten rule that the reason had to be “objective”. “Made a farting noise with his mouth to try to make fun of me while my back was turned” just didn’t hack it, even though 100% true.

All in all, a good education for all of us except the French teacher, who himself probably enjoyed it all too. Not so, though, with all forms of detention.

The past three months have been an uncomfortable revelation. I have spent my life living and working largely in three countries: the UK, California, and Germany, roughly equally. Two of them are involved in substantial surveillance of electronic communications of private citizens of various countries, more than suspected even by many professionals. The third maybe is on some level but has chosen at the government level to protest.

Both the UK and the US defend their activities as necessary to counter terrorism. However, the UK activity is arguably contrary to the 8th article of the European Convention on Human Rights, to which the UK is an original signatory, some 60 years ago. There is no suggestion at present that any other signatory is violating Article 8.

When the revelations about the extent of the surveillance surfaced in June 2013, the British Foreign Secretary, William Hague, said on BBC television “if you are a law-abiding citizen of this country….. you have nothing to fear”. [Ref: the video ]

I -we- have heard this so often. We can choose to believe it, or not. In this sense, it is a highly political statement. I don’t believe it, because of my personal experience. You can, in the first place, wonder what “nothing to fear” means. You may not fear that someone is going to put you in jail and throw away the key, but you may well need to worry whether authorities will make your life in certain ways very much harder indeed.

The statement is misleading. If you are detained and questioned by the authorities against your will, it will be claimed that they are trying to decide whether you are law-abiding or not. The people who detain you, of course, do not have that power. The courts do, but there is a long way between being detained and getting a court to rule, and that makes your life harder, as certain journalists for the Sun newspaper can attest. When the court substantiates your claim, the “nothing to fear” phrase, by this time manifestly false, mutates into “justice has been done”.

Mr. Hague should have said, more accurately, that if you are detained and investigated by the authorities on the basis of information gleaned from the surveillance program, and you are later found by the courts to be law-abiding, justice will have been done. Doesn’t sound quite as carefree, does it?

One of the ways in which this process works is this. Suppose you presume yourself to be a law-abiding citizen of another country besides the UK, and you think of the UK as one of the lands of the free. You fly from Germany back home through London Heathrow airport. You are carrying sensitive informational material about which there is considerable dispute that it should be in the public domain. But you are travelling on behalf of two trusted colleagues, one of whom is your life partner, and they are working through a highly respected multinational news organisation headquartered in the UK, through which you are passing. This trust is absolute: your life partner is publicly working on a public project of great significance and your trip is backed and paid for by his widely-respected employer, who has paid considerable, and continuing, public attention to the morality of the entire project. There is no chance that anyone is trying to pull wool over your eyes.

You might worry that Mr. Hague’s statement does not necessarily apply to you, since you are not a UK citizen. But neither are most of the other 244,999,999 people who pass through the UK in transit in a year. You are unlikely to interpret Mr. Hague’s statement in the narrow sense as “citizen of this country… nothing to fear (but anyone else we do what we want with, so watch out!)”.

As you transit in LHR, you are detained by the London Metropolitan Police. They inform you that you are required to answer all their questions, and threaten you with arrest and jail if you don’t. Worse, you are not at all fluent in their language. (You may think you can get by in another language, up until you have an adversarial transaction based on rules about which you don’t have the slightest idea. Happened to me all the time the first few years in my current job.) They won’t let you contact your lawyer. They offer you one chosen by them.

You have lots to fear. You have been threatened with jail. This goes on for eight hours until you can talk to your lawyer. They detain you for another hour, then you are released. Without any of your electronic devices, all of which have been retained.

This is a harrowing experience. I am quite sure that the people conducting it know it is a harrowing experience. It would be reasonable to presume this is part of the point. Whatever the status of this procedure, somebody really doesn’t want you doing it again, whatever “it” is. You think you are couriering material for established journalists on behalf of one of the world’s great news organisations. Someone really doesn’t want you doing that. You think it’s legal. You think you are law-abiding. Your country, indeed, officially protests to the UK.

This all seems outrageous to you, your colleagues and your government. It is an international “incident”. The reinterpretation starts.

The police detained you, questioned you and threatened you with jail if you didn’t answer their questions (which presumably include the passwords for your various personal electronic records, which you had thought were private – but probably not any passwords for any sensitive records you were carrying because you wouldn’t know those). They did so under a power granted by UK law called the Terrorism Act 2000.

This law gives the police the power to detain you without suspicion, specifically to ascertain if you are a terrorist. It allows them to search materials you have with you (for example, all the electronic devices) to that end. It allows them to do so for nine hours. Then, if they haven’t found anything that says you are a terrorist, they must let you go.

Now, surely the authorities aren’t going to do that unless they have some inkling beforehand that you might be a terrorist, are they? That would be – disproportionate, and the law does not allow them to exercise these powers of detention disproportionately.

So, the first part of the reinterpretation. The authorities will be in course of “trying to determine whether you are a terrorist” for the next little while. They have to do that, for otherwise your detention will clearly have been unlawful. It has been acquiesced in at the highest level of UK government (the government was very careful to explain that acquiescence is the highest level of authority they can exercise over this procedure) – it would be very inconvenient for the government if your detention should be found to be unlawful. So don’t be surprised if you should turn out to be a terrorist, unbeknownst to you.

The second part of the reinterpretation. Just for good measure, there are not one but two grounds for your detention, according to the Home Secretary. One is to determine whether you are a terrorist. The other is to determine whether you are carrying materials whose use by a third party would endanger UK national security. In this case, that would be the information on the electronic devices you were carrying.

The law is clear, as explained by a former government minister who helped draft it and pass it. You may be detained and searched to determine whether you are a terrorist. Full stop.

So, now, expect that the definition of “terrorist” henceforth will include “someone carrying materials whose use by a third party would endanger UK national security”.

Back to Mr. Hague’s statement that “citizens of this country…. have nothing to fear.” Yes, we do. It is that we might be carrying informational materials through a UK airport which, unsuspected by us, would endanger UK national security and therefore, unsuspected by us, we are terrorists as lately clarified.

Who determines whether some material “would endanger UK national security”? Courts convening in secret, now, thanks to recent legislation. People such as myself who think they themselves generally perform public service (my day job, in fact), and know they are carrying material which they wouldn’t want some authorities to see, could find themselves detained, declared “terrorist”, and be unable to find out why, because the reasons are secret.

Suppose you are a lawyer working on a case against one of the UK’s “strategic industries” (we don’t have any -besides surveillance, that is – but I think it is about time we did, just as Germany and France tacitly do). You have material relevant to your client’s case, which you think is good, even though others, including some in the government broadly interpreted (those “supporting” that “strategic industry”), think it isn’t. You go to get on the Eurostar and … zap!… nine hours detention (shortly, we are told, to be six), forced to answer each and every question put to you on pain of arrest and jail, and all your kit is retained. You are forced to give passwords to your material. Of course, the authorities are not entitled to read it because it is legally privileged….. so of course they don’t, do they, and because they don’t, of course they can’t pass any of it on to your opponents in that strategic industry, can they. This is Britain after all! But, unfortunately, there are one or two bad apples in any police force ……

The nice Mr. Hague, Mrs. May and Sir Bernard Hogan-Howe wouldn’t let any of that happen, would they. But what of their successors in 10 years? 20 years? When the English Defence League is in government? The point of the law is that we should not have to rely on the benificence of our politicians to be treated appropriately by the state. I mean “appropriately” here in the supralegal sense of morally decently. What do I mean by morals? I mean that this kind of thing should not, should never, even in principle, be allowed to happen. It must be decisively ruled out in law.

For the moment, though, it seems as if, when UK authorities think you might be carrying information which someone, secretly, could deem detrimental to UK national security for some reason, Mrs. May thinks it’s quite appropriate to detain you for nine hours – shortly to be six – and force you to answer all questions, in any transit area of any UK port, UK citizen or no.

Whatever you think happened last Sunday at LHR, for many professionals engaged in sensitive, even privileged, activities this would seem to contradict Mr. Hague’s assurance that they have nothing to fear.

Leave a Reply