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The Right to Remain Silent in an Age of Mass Surveillance

Last weekend, British police detained David Miranda, husband of Guardian reporter Glenn Greenwald at Heathrow Airport, seized his computer and thumb drives, and forced him to disclose the passwords. The computer and thumb drives presumably contained information about the U.S. National Security Agency’s intrusions into the private communications of millions of people who are not suspected of any wrongdoing.

The seven interrogators claimed authority under the Terrorism Act of 2002, but their questions had nothing to do with terrorism. They were, simply put, conducting a fishing expedition into Greenwald’s work as a journalist. The police did not charge his husband with any crime; he hadn’t committed one. The interrogation was simply an excuse to seize his computer and thumb drives and, if possible, trick him into saying something incriminating.

Had the NSA asked American policemen to question Miranda in an American airport, he would have had a constitutional right to remain silent. Indeed, American policemen would have to inform him of that right.  Ironically, that notification is part of the “Miranda warnings,” named for the Supreme Court decision that found them to be constitutionally required.

But Britain does not have a constitution, so Greenwald’s Miranda can be compelled to answer questions about terrorism, if a special law – like this particular law governing airport transit lounges — permits it.

Absent such special laws, anyone in Great Britain has a right to know the charges against him, and to be left alone if there aren’t any. Fishing expeditions of the sort inflicted on David Miranda were abolished in the seventeenth century, largely due to the defiant actions of one John Lilburne, England’s first libertarian. As we contemplate the largely complacent response of most Britons and Americans to the interrogation and search of Mr. Miranda, it is worth recalling “Freeborn John’s” story (See Jeffrey St. Clair’s: “What Would Lilburne Do?“).

Lilburne was a 23-year old clerk when he was hauled before the secret national security court of his day – the infamous Star Chamber.  The judges – politicians, really – peppered him with questions, hoping he would say something that might help them proved that he had helped smuggle dissenting religious tracts into the country.  But Lilburne refused to cooperate.  I have a right, he insisted, to know what this inquisition is about before I place my soul at risk by swearing before God to tell the truth in response to any and all irrelevant questions you may ask me.

David Miranda was placed in a similar situation.  If he did not answer every question about anything his seven interrogators chose to ask him, he could be convicted of non-cooperation. Or, if one of his answers was later found to be untruthful, he could also be sent to jail, even though he was never tried for any crime.

Faced with these choices, Lilburne decided to remain silent and was condemned to be fined, whipped, pilloried and imprisoned until he obeyed. In April 1638, he was dragged by his hands, which were lashed to an ox cart, two miles through the streets of London, and whipped every few steps across his bleeding back.  Then Lilburne was clapped into a pillory where, despite his contorted position and great pain, he managed to inflame a large crowd about the injustices inflicted upon him.  In prison he was denied food and kept alive by other prisoners who shared their meager rations with him through the floorboards. But, unlike many prisoners today, Lilburne was able to write against such treatment and smuggle his tracts out to a printer.  Before long, “Freeborn John Lilburne” was the most popular man in Great Britain and an inspiration to American colonists who would make his privilege against self incrimination part of their own laws.

Today, no one remembers Lilburne or what he sacrificed to make us free.  Surprisingly few people value what David Miranda and his partner Glenn Greenwald are doing to publish the NSA documents that Edward Snowden has given to them – documents that show serious constitutional violations.

Meanwhile, officials on both sides of the Atlantic are trying, yet again, to control what can be read by the people and who can be spied upon, intimidated, or forced through secret inquisitions to become the instruments of their own doom. What have we come to when there is so little resistance to such thuggery?

Christopher H. Pyle teaches constitutional law and civil liberties at Mount Holyoke College. He is the author of Military Surveillance of Civilian Politics and Getting Away with Torture. In 1970, he disclosed the U.S. military’s surveillance of civilian politics and worked as a consultant to three Congressional committees, including the Church Committee. 

 
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Christopher H. Pyle teaches constitutional law and civil liberties at Mount Holyoke College. He is the author of Military Surveillance of Civilian Politics and Getting Away with Torture. He  is currently writing a book about money in politics.In 1970, he disclosed the U.S. military’s surveillance of civilian politics and worked as a consultant to three Congressional committees, including the Church Committee.   

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