David Miranda, Picking Through The Issue

DM1There is considerable discussion of the detention of David Miranda and the lines are forming up.

On one side, those who seem to hate Glenn Greenwald and would probably justify any action against him or his partner, short of throwing them into Gitmo!

On the other, those concerned with the implications of the detention. I rarely find myself agreeing with Andrew Sullivan but he sums up the wider issue of Snowden’s exposé:

“Readers know I have been grappling for a while with the vexing question of the balance between the surveillance state and the threat of Jihadist terrorism. When the NSA leaks burst onto the scene, I was skeptical of many of the large claims made by civil libertarians and queasily sympathetic to a program that relied on meta-data alone, as long as it was transparent, had Congressional buy-in, did not accidentally expose innocent civilians to grotesque privacy loss, and was watched by a strong FISA court.

Since then, I’ve watched the debate closely and almost all the checks I supported have been proven illusory. The spying is vastly more extensive than anyone fully comprehended before; the FISA court has been revealed as toothless and crippled; and many civilians have had their privacy accidentally violated over 3000 times. The president, in defending the indefensible, has damaged himself and his core reputation for honesty and candor. These cumulative revelations have exposed this program as, at a minimum, dangerous to core liberties and vulnerable to rank abuse. I’ve found myself moving further and further to Glenn’s position.”

Joshua Foust is having none of that, essentially arguing that it was legal and that is what government do. Therefore, there is not much to complain about. I feel that is a rather narrow perspective, particularly for a journalist.

Nevertheless he writes:

“So, this is complicated. The UK authorities were correct to question David Miranda, but they were stupid, wrong, and abusive to have held him for so long — and in doing so, they ruined any possible legitimacy their questions might have held. It was a needless own-goal.

There’s also a bit of historical literacy we should perhaps add to the discussion. Histrionics aside, most governments, and many more unsavory groups, treat secrecy very seriously — sometimes with deadly seriousness. Regardless of the rightness or wrongness of his decision to help pilfer and distribute the treasured secrets of several governments, to do so openly, with such braggadocio, is not only arrogant it is misguided. This is not a game, especially to the governments being exposed, and casually involving a spouse to take a hit when he won’t risk it is a bizarre and troubling decision.”

Later on adding:

“I wonder why the UK would think he was about to attack them? After the first round of leaks, which included substantial details of UK espionage operations, Greenwald said “The U.S. government should be on its knees every day praying that nothing happens to Snowden, because if something happens, all information will be revealed and that would be their worst nightmare.” And in fact, just this morning, he vowed that he would make the UK “sorry” for having questioned his partner.

So yeah: that’s totally unreasonable, I guess. Miranda mentions that he gave authorities the password to his computer, which might explain why he was detained for so long, if they were then searching for any evidence that he was carrying top secret documents with him. The Guardian, in this story, reports that he was ferrying documents for Greenwald and Poitras — a key detail omitted from earlier coverage. But this is perhaps the saddest aspect of it:

“It is clear why those took me. It’s because I’m Glenn’s partner. Because I went to Berlin. Because Laura lives there. So they think I have a big connection,” he said. “But I don’t have a role. I don’t look at documents. I don’t even know if it was documents that I was carrying. It could have been for the movie that Laura is working on.”

It sounds a lot like he’s being used by Greenwald and doesn’t fully understand the seriousness of what he’s wrapped up in. Now, like any other adult Miranda has agency and did not have the make the trip. And it’s possible he’s downplaying his role to sound innocent. His comments about Brazil — he was shocked they asked him about the recent protests there and who he knew in government (Greenwald mobilized the Foreign Minister and UK ambassador within three hours of learning of the detention) — are interesting as well, but that’s probably fodder for another discussion later.”

However, a legal eagle is having none of that and asks:

“Was the nine-hour detention of David Miranda lawful?

In summary: if the questioning, detention, and search of Miranda was for a purpose other than to determine if he was a terrorist, then it was unlawful.”

Update 1: Apparently, the British government went to the extreme level of entering the Guardian’s offices and ordering the destruction of hard drives.

I wonder how Greenwald’s detractors will spin this?

“And so one of the more bizarre moments in the Guardian’s long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian’s basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. “We can call off the black helicopters,” joked one as we swept up the remains of a MacBook Pro. ”

Update 2: The Tory Government’s attack on freedom of the Press has a nasty taste to it, not being able distinguish between journalism and terrorism.

But it reinforces the view that political leaders don’t really understand the Internet.

The Guardian merely needs to file NSA stories from the US and they will be covered by the First Amendment. Moreover,the data which was destroyed will probably be recreated, but in this instance cloned to various locations across the globe, invalidating any attempt to delete one copy.

The Guardian IT department could implement worldwide mirroring of information, ensuring that it doesn’t come under the jurisdiction of a Tory Government or the US Administration.

In the long-term, the attack on Press freedom has confirmed what many cynics suggest it, that those in power will abuse it if they can. Further, news organisations will take measures to ensure that the physical destruction of data in basements does not disable their ability to cover critical news stories, such as the scope of the NSA’s surveillance.

Update 3: Charlie Beckett asks the question, Who is winning the information war: security services or the new disruptive journalists?

Update 4: The Global Post comments:

“In a series of increasingly ominous meetings, the paper was handed a blunt ultimatum from the government: Hand over the documents or destroy them.

Given that other copies of the documents were stored abroad, the paper chose the latter. In what reads like a scene from a noir film — or ‘Zoolander’ — Rusbridger describes how officials from Britain’s top spy agency ordered his staff to smash to bits computer hard drives containing digital copies of leaked documents in the Guardian’s basement.

From a technical standpoint, it’s unclear what UK authorities hoped to achieve by having destroyed the devices on which digital copies of the NSA documents were stored.

“I explained to the man from Whitehall about the nature of international collaborations and the way in which, these days, media organisations could take advantage of the most permissive legal environments,” Rusbridger wrote.

“Bluntly, we did not have to do our reporting from London. Already most of the NSA stories were being reported and edited out of New York. And had it occurred to him that [Guardian journalist Glenn] Greenwald lived in Brazil?” [My emphasis.]”

Update 5: NSA files: why the Guardian in London destroyed hard drives of leaked files is interesting:

“Guardian editors on Tuesday revealed why and how the newspaper destroyed computer hard drives containing copies of some of the NSA and GCHQ secret files leaked by Edward Snowden.

The decision was taken after a threat of legal action by the government that could have stopped reporting on the extent of American and British government surveillance revealed by the documents.

It resulted in one of the stranger episodes in the history of digital-age journalism. On Saturday 20 July, in a deserted basement of the Guardian’s King’s Cross offices, a senior editor and a Guardian computer expert used angle grinders and other household tools to pulverise the hard drives and memory chips on which the encrypted files had been stored.”


Update 6: The Washington Post is reporting, U.S. had advance notice of Britain’s plan to detain reporter Glenn Greenwald’s partner:

“U.S. officials on Monday distanced themselves from the decision of British authorities to detain the Brazilian partner of Glenn Greenwald, the journalist who has exposed details of National Security Agency surveillance programs, amid questions over the documents officials may have confiscated.

White House spokesman Josh Earnest told reporters that U.S. officials had received a “heads-up” that London police would detain David Miranda on Sunday, but he said the U.S. government did not request Miranda’s detention, calling it “a law enforcement action” taken by the British government.

“This was a decision that was made by the British government without the involvement and not at the request of the United States government. It’s as simple as that,” Earnest said.”

Update 7: Boing Boing is covering it too. Mashable and even the New Zealand Herald.

Update 8: Paul Walter has scanned a long letter sent to HMG concerning the legal representation offered to David Miranda during his nearly nine hour detention.

It is very revealing, Details of “legal representation” allowed to David Miranda at Heathrow. A must read.

Update 8: UK Human Rights blog, says David Miranda – Remember his name:

“Which is where we encounter David Miranda. Schedule 7 of the Terrorism Act 2000 includes a stop and search power which, according to the Independent Reviewer of Terrorism Legislation David Anderson QC, is “among the strongest of all police powers” (2012 report, para 9.3). I will leave the detail to others such as Obiter J, Joshua Rozenberg and David Allen Green. In essence, this is a power which allows a person to be questioned for up to nine hours, potentially without a lawyer , for the purposes of determining whether they appear to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism. No reasonable suspicion is needed.

This is a weighty power and also a heavily used one. 61,145 people were examined under Schedule 7 in 2012 alone (Anderson, 2013 report, 10.7). Most of them self-described as ethnic minorities (2013 report, p.98).

And this is not news. Or at least, it shouldn’t be news. The power has existed in some form since 1974, and has received significant criticism from the Independent Terrorism Reviewer in successive reports, as well as being the subject of consistent campaigning. The Coalition Government has listened and after an extensive public consultation has now proposed in a new bill fairly significant reforms to the law.

But we, the public, have closed our ears to the this for years. It is all part of the magic trick. We are safe and we don’t ask questions. Or at least, the fear and noise generated by a major terrorist attack drowns out the sound of questions for years after.”

Update 9: Simon Jenkins makes two salient points:

“There is no conceivable way copies of the Snowden revelations seized this week at Heathrow could aid terrorism or “threaten the security of the British state” – as charged today by Mark Pritchard, an MP on the parliamentary committee on national security strategy. When the supposed monitors of the secret services merely parrot their jargon against press freedom, we should know this regime is not up to its job.”

Update 10: Listen to the questionable arguments from Home Secretary Theresa May on David Miranda and The Guardian – The World at One, BBC Radio 4.

Update 11: Worrying:

“David Miranda said his interrogators threatened he could go to prison if he did not co-operate.

Mr Miranda is challenging the legality of his detention.

He wants his confiscated electronic equipment returned and assurances that his private data will not be distributed on to other parties.

Mr Miranda told the BBC he was forced to disclose his social media passwords.

“I am very angry. This feeling of invasion. It’s like I’m naked in front of a crowd,” he said. “They said I had to co-operate or else I was going to jail.” [My emphasis.]”

Update 12: Roy Greenslade picks over the journalistic bones, noting:

“Not so, however. The deafening silence I have referred to over the last two days, here and here, has continued today.

There has been sparse coverage of the story and an absence of supportive editorial comment.

Worse, in several references to the disgraceful Miranda detention and astonishing government-ordered destruction of hard drives, The Guardian has come under attack.”


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