David Miranda, who was detained for eight hours and 55 minutes by British authorities over the weekend because they thought he was carrying NSA documents for The Guardian, is taking legal action against the government — a move that could crystallize the conflict between state security and journalism.
The British government's conflation of journalism with terrorism in the case of David Miranda is problematic largely because journalism, like terrorism, is no longer performed by discrete, centralized entities. Instead, journalists and those performing journalism around the world operate in small cells or individually. You post a video of police detaining a suspect to your Facebook wall, and you're committing an act of journalism — one that authority figures may not see as subject to First — or Fourth — Amendment protections.
In the battle with the security state, those who might commit acts of journalism have three choices: acquiesce, push back, or step away.
Miranda, who is Guardian reporter Glenn Greenwald's partner, is choosing option two. The BBC reports that Miranda is taking legal action of an unspecified nature, challenging his detention and seeking to prevent the government from reading the information on the devices it collected. What that information is may only be known by filmmaker Laura Poitras, the person with whom it originated in Berlin, but there's little doubt it includes encrypted files related to the Snowden leaks.
The British Home Office released a statement about the Miranda incident. It reads, in part:
If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that. Those who oppose this sort of action need to think about what they are condoning.
The most important word in that statement is "would." Not "could" help terrorism — a standard so loose that it might apply to millions of pieces of information and real-world objects. But "would." The British appear to be echoing the NSA's line that detailing how the government does its work is itself an aid to terrorists. (A claim perhaps undermined by the recent embassy closures.) It also appears to echo the argument made by the government in the Bradley Manning case: publishing information is aiding the enemy.
There are some to whom this argument is compelling. The British paper The Telegraph defends the authorities' action in detaining Miranda, as does the editor of Kernal magazine. (His article begins "PRISM blogger Glenn Greenwald’s Brazilian boyfriend, David Miranda…," providing a clear indicator of where his argument was headed.)
Rising to the defense of the American government is Jeffrey Toobin of the New Yorker. Toobin was criticized for his critique of the Snowden leaks earlier this month; Tuesday's essay is a continuation of that critique. "To be sure, Snowden has prompted an international discussion about surveillance," Toobin argues, "but it’s worthwhile to note that this debate is no academic exercise. It has real costs." Those costs are literal — the NSA having to build new surveillance systems — and figurative: "What if there is no pervasive illegality in the National Security Agency’s surveillance programs?" Toobin states that there is "no proof of any systemic, deliberate violations of law" revealed by Snowden, then noting of the Post revelations about privacy violations that "it’s far from clear, at this point, that the N.S.A.’s errors amounted to a major violation of law or an invasion of privacy." Incidental violations of privacy law, averaging seven a day, are acceptable to Toobin, as a cost-saving measure.
Those specific defenses aside, the intentions of the British authorities cannot be considered outside of the context of their behavior. Late Monday afternoon, Guardian editor Alan Rusbridger revealed the paper's encounters with British authorities over this information. In a weirdly archaic move, representatives of the government's intelligence arm forced the destruction of hard drives containing Snowden information, as though that limited their ability to travel. The authorities threatened Rusbridger, prompting the paper to decide to move its reporting on the topic out of the country.
And then there's the treatment of Miranda himself. For eight hours, he was denied the right to his own counsel. The end result was confiscation of his electronic media, something that could have been accomplished in less than an hour. But, Reuters reported on Monday, that wasn't all that the authorities hoped to accomplish.
One U.S. security official told Reuters that one of the main purposes of the British government's detention and questioning of Miranda was to send a message to recipients of Snowden's materials, including the Guardian, that the British government was serious about trying to shut down the leaks.
In other words, intimidation.
In light of Rusbridger’s disclosures, it’s even clearer that the detention of Miranda is part of an attack on American journalists authorized at the highest levels of the British government, and it’s an attack that is at the very least implicitly backed by the Obama administration. …
This is police-state stuff. We need to know the American government’s role in these events—and its stance on them—sooner rather than later.
The founder of law site Groklaw offered her response to the government's surveillance systems in a post this morning. In short: she's closing the site. That's stepping away from the fight, and a natural reaction to intimidation. But only one of the three responses — acquiescing, pushing back, or avoidance — offers the hope of reform.
Correction: Following new details from Rusbridger, the description of the destruction of the hard drives was updated. Photo: Miranda speaks to the press on his arrival in Rio. (Reuters)