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David Miranda Case: British High Court Accepts Investigative Journalism Can Be Like Terrorism

David Miranda (Creative Commons-licensed Photo by Agência Senado

A British high court has decided that the detention of David Miranda, partner of journalist Glenn Greenwald, under a provision of the United Kingdom’s terrorism law was “lawful.” The objective of his detention was “not only legitimate but very pressing.” He had in his possession material that was “stolen” from the National Security Agency by whistleblower Edward Snowden which if made public would have posed a risk to life.

Miranda is appealing this ruling and reacted, to the decision, “I’m of course not happy that a court has formally said that I was a legitimate terrorism suspect, but the days of the British Empire are long over, and this ruling will have no effect outside of the borders of this country.”

“I’m convinced they’ve hurt their own country far more than me with this ruling, as it emphasizes what the world already knows: the UK has contempt for basic press freedoms,” he also told The Intercept (of which Greenwald is a writer/editor).

Miranda was detained at Heathrow Airport on August 18 when he was on his way to Rio de Janeiro from Berlin. He was held under a terrorism law provision known as Schedule 7 for the maximum period one can be held without charge and authorities seized electronics equipment he was carrying including a mobile phone, laptop, camera, memory sticks, DVDs and gaming consoles.

He had been staying with journalist Laura Poitras. Security Services and the Metropolitan Police Service in the UK hoped they would be able to obtain access to any documents from Snowden that he may have been carrying.

Lawyers for Miranda argued that the detention had been improper and disproportionate. It violated press freedom, posed a threat to sources and there was no threat to national security posed by the fact that Miranda may have had material from Snowden. “Responsible journalism” would have been practiced and people in intelligence agencies who needed to be protected would be protected, as they had been by reporters covering previous national security stories involving documents with names.

Lord Justice Laws did not find that any of these arguments trumped the national security interest of UK security services, which the Lord Justice believed the services were well within their authority to intercept so the “stolen” material did not become public for consumption and use by terrorists.

According to the decision, Detective Superintendent Jim Stokley of Counter-Terrorism Command in the Metropolitan Police was briefed on August 15, 2013. “Counter-terrorism police officers” were provided on August 16 with a “Port Circulation Sheet (PCS). The box asking for confirmation “that the purpose of an examination will be to assist in making a
determination about whether the person appears to be someone who is or has been concerned in the Commission, Preparation or Instigation of acts of terrorism (CPI)” was not checked. However, the same page did state the following:

…Intelligence indicates that MIRANDA is likely to be involved in espionage activity which has the potential to act against the interests of UK national security. We therefore wish to establish the nature of MIRANDA’s activity, assess the risk that MIRANDA poses to UK national security and mitigate as appropriate. We are requesting that you exercise your powers to carry out a ports stop against MIRANDA…

Stokley was also issued a “note” by the Security Service that had the heading “National Security Justification for proposed operational action around David MIRANDA.” A redacted version included this text:

…We strongly assess that MIRANDA is carrying items which will assist in GREENWALD releasing more of the NSA
and GCHQ material we judge to be in GREENWALD’s possession. Open source research details the relationship
between POITRAS, GREENWALD and SNOWDEN which corroborates our assessment as to the likelihood that GREENWALD has access to the protectively marked material SNOWDEN possesses. Our main objectives against David MIRANDA are to understand the nature of any material he is carrying, mitigate the risks to national security that this material poses…

…We are requesting that you exercise your powers to carry
out a ports stop against David MIRANDA…

The Security Service contended that Miranda had “a large volume of GCHQ material which, if released, would have serious consequences for GCHQ’s collection capabilities as well as broader [Security Industry Authority] operational activities.” And a final PCS delivered to police plainly suggested his detention would be justified under the terrorism law because he was “knowingly” carrying material that would “endanger people’s lives.”

“The disclosure, or threat of disclosure, is designed to influence a government, and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under Schedule 7.,” according to the final PCS.

The definition of “terrorism” is “very broad” in the law. Lord Justice argued this was what Parliament had intended. Parliament had also intended for officers conducting the stop to not know why they were stopping a person an intelligence agency wanted stopped “to prevent any unwitting disclosures to the subject of the examination.” So, since officers had “good faith” to believe Miranda posed some kind of threat—because the Security Service told them he did, they were within their broad authority to detain, search and seize property from him.

Article 19, English PEN and Media Legal Defence Initiative, which were interveners (amici) in the case, responded to the decision, “The judgment will expose any journalist covering a story on national security, who passes through a port in the UK, to being detained under schedule 7 and having their sources or material seized. It therefore threatens to undermine protections for journalists that are recognized in international law and may deter future sources from providing information to the media in the public interest.”

“We are equally disappointed with the statements of the court regarding the role of journalists in a liberal democracy. In particular, the judgment questions the media’s authority to decide on publishing material relating to national security, stating that this is a constitutional role reserved for governments. We believe that this would limit journalists’ ability to cover stories of the greatest national importance and public interest,” the joint statement added.
Rosie Brighouse, a legal officer for Liberty, a human rights group in the UK that was also an “intervener,” declared, “If such a barefaced abuse of power is lawful then the law must change. Miranda’s treatment showed schedule 7 for what it is: a chillingly over-broad power, routinely misused. People are held and interrogated for hours, their property confiscated while they’re swabbed for saliva – all without any suspicion that they’ve done anything wrong.”

The Guardian responded, “We’re disappointed by today’s judgment, which means that an Act designed to defeat terrorism can now be used to catch journalists who are reporting on issues of fundamental importance. The judgment takes a narrow view of what ‘journalism’ is in the 21st century and a very wide view of the definition of ‘terrorism’. We find that disturbing.”

The cold hard fact is the three judges wholly vindicated the police. It accepts that it was appropriate to steal the material because, alarmingly, according to the court, the “58,000 highly classified UK intelligence documents” Miranda had were not “journalistic material.” It reaffirmed the position of UK Home Secretary Theresa May: “If the police believe any individual is in possession of highly-sensitive stolen information that would aid terrorism, then they should act. We are pleased that the court agrees.” And, it accepted that the security services may continue to go through material and possibly bring charges against “some individuals” for offenses committed.

Not until the final Port Circulation Sheet did the Security Service make any suggestion about Miranda having material that would aid terrorists but, when police were reticent to conduct the detention, they crafted a justification so they could use their power to seize property from him.

The justices accepted “the disclosure, or threat of disclosure,” by journalists or a whistleblower, Snowden, was “designed to influence a government, and is made for the purpose of promoting a political or ideological cause,” just as terrorists might seek to “influence a government” by engaging in acts designed to “promote” a “political or ideological cause.”

It did not matter to the judges that influence or coercion by terrorists typically involves violence or threats of violence and influence or coercion by journalists or whistleblowers involves concealed truths or the threat of revealing concealed truths, an entirely non-violent act. Nor did the judges care that this trivializes terrorism by treating acts that reasonable people would agree are not terrorist acts as acts of terrorism.

Furthermore, from the decision, it becomes clear that the Security Service was undertaking its action because it feared Russia, a “hostile state,” would likely get its hands on the material and they wanted to know exactly what Snowden had taken so they could be prepared. Of course, they merely assumed he still had documents in his possession and do not know that he has any documents in Russia. (In fact, Snowden has maintained journalists have all the copies of documents that he took.)

GCHQ already sent agents to ensure The Guardian destroyed hard drives that had once contained material from Snowden. The security state in the UK is fully committed to stopping journalism and stifling debate on how it operates and abuses its authority. British Prime Minister David Cameron has endorsed a parliamentary investigation into journalists reporting on the leaks and British journalists have even subserviently written things like, “If the security services insist something is contrary to the public interest, and might harm their operations, who am I (despite my grounding from Watergate onwards) to disbelieve them?”

With this ruling, the Security Service can claim to the police that a journalist or person supporting an act of journalism may appear to be carrying material that could be helpful to “terrorists” and that is enough to justify detention for the maximum period under the law. There does not need to be evidence of “intent” or “recklessness,” each “foundational concepts of criminal law.” Mere possession makes one vulnerable to being targeted by the security state.

All journalists engaged in journalism on stories that involve government documents related to issues of national security should steer clear of the United Kingdom. The ruling political class, courts and some in the press find it perfectly acceptable to think acts of investigative journalism could lead to terrorist acts of violence without security state intervention.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."