Constitution-minded Americans gasped when it was revealed that David Miranda (spouse of Guardian journalist Glenn Greenwald) was detained for over 9 hours by the U.K. authorities today at the London airport under Schedule 7 of the Terrorism Act of 2000. Journalists and citizens alike were dismayed at Miranda’s mistreatment, demanding an apology from the British government and pushing for immediate legislative reforms that would prevent a recurrence of such a violation.
The truth is, if Miranda was to travel through one of the U.S. ports of entry, under our draconian laws he would likely be abused in an even more profound way. The border search exception is a doctrine of United States criminal law that allows searches and seizures at international borders, sea ports and airports without a warrant or probable cause. Furthermore, there is little doubt at this point that special “Lookout” alerts have been created in TECS, NCIC and Automated Targeting System (ATS), red-flagging Glenn Greenwald, Laura Poitras, their significant others and anyone else suspected of involvement with NSA whistleblower Edward Snowden. These lookouts were also shared with Interpol and posted to various international law enforcement databases. The U.S. government and its allies consider these brave individuals, their affiliates and their belongings to be “fair game”.
Lookouts in question may be based solely on suspicion of violations, or nothing more than the fact that the subject’s activities could be of investigative interest to the U.S. authorities. Customs Officers are authorized to search any and all belongings, including pocket trash and sealed mail - without any level of suspicion, much less probable cause. U.S. government officials would also be able to open, login, search through and copy all the electronic information stored on any of the traveler's electronic devices.
In spite of legal challenges to Customs’ authority to search electronic files, the Fourth Circuit Court of Appeals agreed with the government in United States v. Ickes, ruling that “The border search doctrine is justified by the longstanding right of the sovereign to protect itself. Particularly in today's world, national security interests may require uncovering terrorist communications, which are inherently “expressive.”
Customs' authority to search electronic materials at the border has only two silly limitations: (1) the search may not cause exceptional damage to the property; and (2) the search may not be conducted in “a particularly offensive manner.” Translation: Customs officials may search and copy the contents of travelers’ cell phones, laptops, hard drives, CDs, DVD’s, MP3 players, digital cameras and memory drives randomly, without any suspicion, and without any First Amendment restrictions. These devices may also be seized and held for years, which would normally constitute a violation of the Fifth Amendment.
It gets even worse. Only minimal level of suspicion would be necessary for a strip, body-cavity, or an involuntary X-ray search. For example, based on a simple suspicion that Miranda may be concealing flash drives or any other small electronic storage devices in his body, he would very likely be subjected to those humiliating searches as well.
Much as he was questioned in the U.K., Miranda would have been vigorously interrogated in the U.S., with no Miranda warning (no pun intended). He would similarly not be allowed to contact an attorney. Unlike U.K. authorities, it’s highly unlikely that any of the American government officials would have bothered to call Glenn Greenwald to inform him or anyone else of what was happening (other than to do so with intent to harass, embarrass or interrogate Miranda’s family members). For example, if Miranda claimed a different reason for his travels than the one later specified by Greenwald (in the event he was caught off-guard by the phone call), that would have given the authorities enough of a reason to extend the detention and/or to pursue criminal charges against either party for lying to federal authorities. Such techniques are frequently used to “break” suspects on the border, by separately posing questions to different family members, unwittingly pitting them against each other and comparing their statements.
In short, there are plenty of good reasons to be outraged against the U.K. authorities for abusing an overbroad Terrorism Act to question, intimidate and impede a law-abiding Brazilian citizen, simply for committing an act of “journalism” while being married to Glenn Greenwald (not dissimilar to being arrested for “driving while black”). On the other hand, we should be just as concerned as to what would happen to Miranda or Greenwald at a U.S. airport (which is nothing new to courageous Laura Poitras). While we demand that the U.K. authorities re-think the legality of their actions, let’s debate with the same intensity whether Constitution-free zones should continue to exist in our own country.
We should also realize that the despicable decision to detain, search and question David Miranda is directly related to the enormous pressure applied to the U.K. authorities by their U.S. counterparts. All is fair in love and war – and the President takes one war particularly close to heart: the war on whistleblowers.