August 30, 2013
A high court in the United Kingdom has given the Metropolitan police the expanded power to investigate whether David Miranda committed "crimes related to terrorism and breaches of the Official Secrets Act," according to Robert Booth of The Guardian.
Miranda, who is Guardian journalist Glenn Greenwald’s partner, was detained by British authorities at Heathrow Airport under a terrorism law for just under nine hours, which is the maximum period under the law that one can be held without charge. The authorities detained him to gain access to documents from former NSA contractor and whistleblower Edward Snowden.
The authorities seized electronic devices he had including a mobile phone, laptop, camera, memory sticks, DVDs and gaming consoles." He was returning from Berlin, having met with journalist Laura Poitras, who provided him with some highly encrypted documents possibly from Snowden that he could take back to Brazil, where he lives with Greenwald. Miranda’s travel was to be paid for by The Guardian.
At a hearing in front of Lord Justice Laws and Judge Kenneth Parker, lawyers for Miranda said they had agreed to the terms of wider police powers to investigate a hard drive and memory sticks containing encrypted material that were seized on 18 August. Previously the inspection had been conducted on the narrower grounds of national security.
Following the court ruling, the police will now be allowed to examine the material to investigate whether a crime of "communication of material to an enemy" has been committed as well as possible crimes of communication of material about members of the military and intelligence services that could be useful to terrorists. [emphasis added]
The ministerial department in the UK, which is responsible for matters related to immigration, security and law and order, the Home Office, had Oliver Robbins, deputy national security adviser in the Cabinet Office, provide a witness statement to the court where it was alleged that the material seized contained "personal information of UK intelligence officers" and "any compromise" would "result in a risk of their lives and those of their family members."
Booth further reported:
Release of the data, Robbins said, would render spies and their families vulnerable to attacks or even recruitment by terrorists and hostile intelligence agencies. He said the government had so far managed to access a portion of the encrypted files on the hard drive seized from Miranda which he said contained approximately 58,000 highly classified UK intelligence documents.
The material was "highly likely to describe techniques which have been crucial in life-saving counter-terrorist operations, and other intelligence activities vital to UK national security", the compromise of which "would do serious damage to UK national security and ultimately risk lives."
A lawyer for Miranda, Gwendolyn Morgan, said the assertions were "unfounded" and the assessment the government had made was "sweeping and vague," according to the BBC’s Steve Swann. Guardian Editor-in-Chief Alan Rusbridger accused Robbins of making a "number of unsubstantiated and inaccurate claims."
After the hearing, officials from the government went on to make even more claims about the seized material. Swann additionally reported the police would be investigating "offenses under Section 58 of the Terrorism Act 2000″ and whether the collection of information may have been "of use in terrorism."
The government further suggested that "all of the UK intelligence documents available" to Snowden were "likely" to be in Miranda’s possession. They accused Snowden of "indiscriminately" appropriating material "in bulk." They also stated that a "seemingly innocuous piece of information can provide important clues to individuals involved in extremism or terrorism." The "real damage has already been done to UK national security by the media revelations."
Developments clearly demonstrate the government is conflating crimes that involve terrorism with the violation of laws designed specifically to protect classified information. They also appear to be hyping up the contents of the documents to justify abusing authority under the terrorism law. For example, it seems incredibly outlandish to suggest that spies would be vulnerable to "recruitment by terrorists" if the documents were released.
Significantly, there is nothing about Miranda’s intent in the statements by officials. They seem to think it is reasonable to investigate alleged crimes committed simply because of the mere possession of the information and his traveling could have led to a situation where the information could have possibly fallen into the hands of alleged extremists or terrorists. But developed statements were all designed to heighten the sense of risk to national security and ensure the court would not challenge the authority of the government to continue to sift through materials that were seized.
The theory the government is promoting around crimes that involve terrorism being committed gives the government greater powers to detain individuals obtaining materials for news stories the government does not want published. That may be the motivation behind advancing the theory.
Former Metropolitian Police Commissioner Lord Blair previously told BBC that someone "could be assisting terrorists by publishing secret information, even if it was not their motivation." There needed to be a "review" of the terrorism law that Miranda was detained under because the "threat from international terrorism" is "constantly changing."
"[There is a] new threat which is not of somebody personally intending to aid terrorism, but of conduct which is likely to or capable of facilitating terrorism," he said.
Citing examples of information leaks related to Bradley Manning and WikiLeaks, he said: "The state has to have secrets – that’s how it operates against terrorists,
"It has to have the right to preserve those secrets and we have to have a law that covers a situation when somebody, for all sorts of wonderfully principled reasons, wishes to disclose those secrets…" [emphasis added]
Blair advocated expanding the Official Secrets Law to cover individuals who were not officials so individuals possessing secrets without authority could be pursued.
It is tough not to think the government has adopted Blair’s point of view on the Official Secrets Act, as it appears that they may be utilizing Miranda’s case to expand it greatly so it can give the government more power to stifle national security journalism and clamp down on whistleblowers. The intent of the person would not matter. The knowledge that one had secrets that might be disclosed would be enough to prosecute someone for aiding enemies.
On first glance, the argument may seem similar to the argument in the case of Manning that Manning "aided the enemy." But, when one considers how the information is highly-encrypted, has not been published and how Miranda was assisting The Guardian, the argument by the British government is much more extremist than the arguments made against Manning.
As it became apparent in the court martial of Pvt. Manning, any piece of government information related to national security or the defense of a country can be said to contain details that may help facilitate terrorism or help enemies. They may be able to use the information to advance propaganda, but to adopt that view is to believe in a closed society where citizens are privy to no information on the powers a government thinks it has to conduct national security or defense operations because anything said by any official spokesperson for government would make the facilitation of terrorism much more possible.
Such a rationale should be viewed as the refuge of disingenuous power-thirsty officials, whose real desire is to stifle journalism that forces them to reevaluate their methods of conducting themselves so they are more respectful of civil liberties and the rule of law. And given recent events, where the government forced The Guardian to symbolically destroy hard drives to send a message that journalists should stop reporting on information from Snowden, the British government will go to extremes to deter and prevent journalism.