This is an odd comment

\”David\’s detention was unlawful and inexcusable. He was detained under a law that violates any principle of fairness and his detention shows how the law can be abused for petty vindictive reasons.

How can being detained under a law be unlawful?

I could understand unfair, or that the law itself violates human rights, all that sort of stuff. But if a law expressly says that they can do this something (which it does) how can that be unlawful?

35 thoughts on “This is an odd comment”

  1. Depends. A statute can be cited as the basisfor detention, but whether the test allowing detention under that Act has been correctly applied is a different matter.

  2. Lefties find out that Labour’s authoritarian anti terrorism laws can be used against the “good guys”. They were warned.

  3. Surreptitious Evil

    On the simple face of it, it seems legal.

    Miranda may well have been, because of his very close connection with somebody who certainly is, in possession of information subject to s58 or s58A of the Act, hence making his detention to determine whether or not he is legitimate under ss 2, 8 & 11 of Schedule 7.

  4. I suspect that Greenwald is one of those idiots who think that the law is whatever they say it is, so “unlawful” really just means “nasty”. He’s from the same camp as those who insist that the liberation of Iraq was “illegal”, but can never cite the law they think it infringed.

  5. Dear Mr Worstall

    The powers that be like to conflate legal with lawful to distract their victims from what the state is doing to them.

    Statute law is legal, Common Law is lawful. A statute may grant legality to an act, which is and always will be unlawful.

    It was legal for the Nazis to engage in industrial murder – the law said they could. However is was not and never can be lawful.

    If you were lucky enough to receive an email from me, you would find the sage comment, question and answer below appended thereto.

    Hope this helps.

    DP

    There is more to life than paying taxes

    What is the difference between
    government and organised crime?

    v

    v

    One is illegal.
    v

    But neither is lawful.

  6. That sort of spurious distinction smells almost FotLish. Especially bringing “the Common Law” in to it.

    Slavery was entirely lawful under the common law until made illegal by statute. Which of those was “right”?

  7. @Surreptitious

    “Miranda may well have been, because of his very close connection with somebody who certainly is, in possession of information subject to s58 or s58A of the Act, hence making his detention to determine whether or not he is legitimate under ss 2, 8 & 11 of Schedule 7.”

    Ah, yes, the Middle Age German legal principle of Sippnehaft or “kin liability”, practised in the 20th century by the Germans (before the wall and on the east side after the contruction of the wall) and the previous century by the Japanese, no less. In Stalinist Russia where the practice had less formal legality, unfortunate citizens were frequently imprisoned for being relatives of “enemies of the people”.

  8. The police had reason to suspect that Miranda was carrying stuff that was covered by the unreasonable, but legal, scope of the anti-terrorism bill precisely because he is Greenwald’s partner. Stuff that Greenwald did not want sent to him by email in case NSA read his emails.
    It would be unlawful and inexcusable to detain *me* under anti-terrorism legislation because there is no reason to suspect me, but Miranda is, per se, a suspect.
    I suppose Greenwald wants to abolish metal detectors and ban sniffer dogs … or is it just that he believes journalists are above the law?
    Certainly the law can be abused for petty or vindictive reasons (Sergei Magnitsky, for instance) but Miranda is not Magnitsky.

  9. Courageous State enacts some far-reaching legislation that we are assured will never be used inappropriately.

    Courageous State uses said far-reaching legislation in a way that some think inappropriate.

    Who’d a thunk it?

    It is hard not to laugh or say “told you so”.

  10. It would be unlawful and inexcusable to detain *me* under anti-terrorism legislation because there is no reason to suspect me, but Miranda is, per se, a suspect.

    They don’t need reasonable suspicion to detain and question under Schedule 7.

    I suppose Greenwald wants to abolish metal detectors and ban sniffer dogs … or is it just that he believes journalists are above the law?

    I can’t speak for Greenwald but I would rather people like Miranda weren’t stopped on the spurious grounds of determining if they are or have been “concerned in the commission, preparation or instigation of acts of terrorism” just because they might be involved in exposing how modern liberal democracies don’t function as advertised.

  11. “I suppose Greenwald wants to abolish metal detectors and ban sniffer dogs … or is it just that he believes journalists are above the law?

    Only the ones he’s sleeping with…

  12. I’m guessing the reason the BBC have this as their top news story is because a journalist is involved. They don’t appear to be as interested in the dozens (if not hundreds) of tourists who are unlawfully detained by the UK Border Agency every day just because they have a quantity of tobacco or alcohol which the UKBA has decided is too much, despite there being no limit under EU law.

  13. I’m loving the ideological contortions that supposed libertarians are putting themselves through just so they aren’t on the same side if the equation as greenwald

    David Allen green explains why it was unlawful.

    I predict some serious back pedalling by the met and UKBA over the next few days

  14. Surreptitious Evil

    I’m loving the ideological contortions that supposed libertarians are putting themselves through just so they aren’t on the same side if the equation as greenwald

    You are (maliciously?) confusing the question “was it legal?” with the wholly different “should it be legal?”

  15. Surreptitious Evil

    Oh, and according to the Guardian, Miranda was ferrying material between Greenwald and Laura Poitras. So it’s not bullying, as Greenwald claims, “kin liability” as Alex claims or anything else like that.

    He was carrying material that the authorities would clearly (and, even, reasonably) prefer not further distributed, and which Greenwald was in possession of in violation of UK law (and was given to him in violation of US law – note the unsubtle difference.)

    Note for the terminally lefty – that the law _is_ this way does not mean that I think that the law _should be_ this way.

  16. Much as I despise the Guardian and the leftist pukes who write for it, even a stopped clock etc. Greenwald has done stirling work in helping Snowden expose the scum of the so-called liberal democratic state.There is not the slightest chance that Greenwald’s boyfriend is a terrorist out to do violent harm to anyone. He was targeted for vindictive, intimidatory reasons by UK plod acting prob as lapdogs of the US federal tyranny. Of course such scum don’t want any more details about their antics to be made public.

    As for the consistency of Libertarians–here’s a simple take

    Socialism=pure evil (200 million dead so far and counting)
    Fascism=Socialism lite
    Social Democracy=Fascism lite
    Freedom is all that matters–piss on voting.

  17. @ rjy
    DAG explains why HE thinks it was unlawful. Miranda was questioned to discover whether he was a terrorist so they spent hours asking him “about his whole life”. This allowed them to confiscate material which he was ferrying to Greenwald. Miranda *was*, predictably, carrying material ( according to his media fan, The Guardian) that they thought *might* be helpful to terrorists because they did not know what it was (and incidentally, was STOLEN PROPERTY so Miranda is guilty of a crime under English law, to wit, handling stolen property). Prima facie the behaviour of the police was quite lawful, albeit devious. The probably spurious grounds [only probably – Greenwald is providing comfort to all enemies of the USA (not that uncommon in a Guardian journalist) and it is theoretically possible that he does so because his boyfriend is a “terrorist” as defined by Tony Blair] were used] because they are not allowed “fishing expeditions” under most UK legislation
    Pace ukliberty, Greenwald was offensively arrogant in asking Miranda to carry stolen property through Heathrow when he could quite easily have asked him to change planes in Lisbon instead.
    @ ukliberty
    I agree with your last paragraph but carrying stolen goods through Heathrow is thumbing his nose at the law, let alone the police. As to not needing “reasonable suspicion” – ugh!

  18. ukliberty: presumably material Snowden purloined. But of course if it’s encrypted then they don’t really have any way of telling. If Greenwald et al. are doing things right, no-one in a position to be coerced will be in possession of the decryption keys. In this case, the authorities have a flash drive or whathaveyou with stuff on it they may reasonably suspect to be dodgy, but which they cannot show to be (assuming there do not exist backdoors into the crypto, and there’s no reasion to suppose they do.) In fact, if I were Greenwald, I would have encrypted several gigabytes of random data with a throwaway key and put it on the flash drives.

  19. Firstly,legally speaking it *was* stolen (the USA and the UK has laws governing intellectual property rights). This is not about copying his own data or something out of copyright like the Bible or Shakespeare. Secondly since Aleynikov’s appeal on a technicality, the law has been changed to eliminate that technicality
    Blunkett made Michael Howard look like a flower-wearing peacenik and I continue to be horrified by some of his legislation but asking Miranda to fly via London carrying stolen property is comparable to telling the Klitschko brothers that they are a pair of weeds and “come outside I’ll show you”.
    Ian Hislop’s answer when asked on Fayed v Hamilton “I hope they both lose”

  20. I’m not saying the copying of information is perfectly above board. I am only saying it was not theft. An element of the English offence of theft is that the owner is permanently deprived of the property. Making a copy does not deprive the owner of the property, therefore it is not theft. I do not dispute that copying may be unlawful – but that does not mean it is theft.

    And if Miranda was “guilty of a crime under English law” why wasn’t he arrested?

    Aleynikov’s appeal was not founded on a technicality. The offences he was charged with and convicted of did not apply to what he was alleged to have done. Now, that doesn’t mean what he did was lawful or right, it means exactly what I said: the offences he was charged with and convicted of did not apply to what he was alleged to have done. So he should not have been charged or convicted of those offences. It’s like a driver failing to stop after an accident being charged with driving while disqualified. Yes, he did something unlawful, but he wasn’t driving while disqualified.

  21. john77: “Firstly,legally speaking it *was* stolen (the USA and the UK has laws governing intellectual property rights).”

    Wrong, for a number of reasons.

    Firstly, theft is not a concept which applies to so-called “intellectual property rights.” Terms such as “theft” and “property” are frequently used by copyright and patent maximalists to push people into a certrain way of thinking, but that doesn’t make them valid.

    Secondly, you got it wrong when you said “This is not about copying his own data or something out of copyright like the Bible or Shakespeare.” In general, the US government is not able to assert domestic copyright over material if produces, so assuming the material held was produced directly by the US government, it WAS like copying something out of copyright like Shakespeare. I haven’t used your other example of the Bible, because the King James Bible is still in under copyright protection in the UK.

  22. I am disinclined to accept that “taking and driving away” is fundamentally different from stealing and that intellectual property does not exist. I am required to certify that I am not plagiarising (except if I have previously obtained formal consent) anyone else in every single paid-for report that I write (and for several years a colleague has been noting others acknowledging that they are quoting my research).
    Theft *is* a concept that applies to intellectual property rights hence lawsuits over patent infringement. Paul seems to have never heard of Apple and Samsung nor of any edition of the Bible other than the King James, which is an exceptionally good TRANSLATION into *seventeenth century* English: if there is copyright protection for the Massoretic text, I must have overlooked it. Not a single word of the Bible was written in English.

  23. I am disinclined to accept that “taking and driving away” is fundamentally different from stealing

    Regardless of your disinclination, it is literally and trivially true that when you copy something you do not “take” the thing, move it, remove it, transport it, spirit it away, make off with it or anything similar.

    Therefore the owner is not deprived of the thing. Therefore it is not theft.

    If you want to see some US legal discussion of that, read the Aleynikov appeal decision – it’s all in there.

    The decisive question is whether the source code that Aleynikov uploaded to a server in Germany, then downloaded to his computer devices in New Jersey, and later transferred to Illinois, constituted stolen “goods,” “wares,” or “merchandise” within the meaning of the NSPA. Based on the substantial weight of the case law, as well as the ordinary meaning of the words, we conclude that it did not.

    But that doesn’t mean a different crime or civil wrong has not been committed.

  24. john77: “Theft *is* a concept that applies to intellectual property rights hence lawsuits over patent infringement.”

    This is wrong yet again and in fact, isn’t even coherent. Patent infringement is patent infringement. It is not theft. You could change the word “theft” in your sentence to “trespass”, “fraud”, “rape” or “murder” and it would still carry as much weight and have as much validity – zero. In fact, using “trespass” would have more validity, as you would at least be trying to conflate two civil matters, rather than attempting to conflate a civil matter with a criminal matter.

    “Paul seems to have never heard of Apple and Samsung”

    Yes, I have. Apparently, you haven’t in any meaningful sense, because you don’t appear to understand that they are a sequence of actions taken in response to a belief of patent infringement. You appear to believe them to be a sequence of actions in response to the criminal act of theft, rather than civil patent infringement cases, which anybody with a basic understanding of the situation would know is not the case.

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