The Miranda Detention: Troubling from all Sides

Updated Below

Glenn Greenwald’s hus­band, David Miranda, was detained by the UK gov­ern­ment at Heathrow air­port this week­end, held for nine hours, ques­tioned on the Guardian’s report­ing into sur­veil­lance activ­i­ties, and had all of his elec­tron­ics confiscated.

Held under “Sched­ule 7″ of the UK’s ter­ror laws, Miranda was detained in con­nec­tion with his husband’s report­ing activ­i­ties — a tac­ti­cally dis­as­trous choice by the British author­i­ties (what­ever the legal jus­ti­fi­ca­tion), and the length of his deten­tion is clearly unwar­ranted. His deten­tion was abu­sive and should not have hap­pened. It was a stu­pid move by the UK author­i­ties, and the out­rage and anger reporters have expressed ever since is entirely understandable.

How­ever, Miranda’s trip bears exam­i­na­tion, as does the basis of the UK law used to detain him. Sched­ule 7 states rather clearly in Sec­tion 2:

An exam­in­ing offi­cer may exer­cise his pow­ers under this para­graph whether or not he has grounds for sus­pect­ing that a per­son falls within sec­tion 40(1)(b).

So regard­less of sus­pi­cion, Miranda could be stopped at the air­port — espe­cially because he is a for­eign national (a Brazil­ian cit­i­zen). More­over, in Part 1, Sec­tion 1, the def­i­n­i­tion of “ter­ror­ism” as con­sid­ered by the UK gov­ern­ment mat­ters quite a bit:

(1)In this Act “ter­ror­ism” means the use or threat of action where—

(a)the action falls within sub­sec­tion (2),

(b)the use or threat is designed to influ­ence the gov­ern­ment [F1or an inter­na­tional gov­ern­men­tal organ­i­sa­tion]F1 or to intim­i­date the pub­lic or a sec­tion of the pub­lic, and

©the use or threat is made for the pur­pose of advanc­ing a polit­i­cal, reli­gious [F2, racial]F2 or ide­o­log­i­cal cause.

(2)Action falls within this sub­sec­tion if it—

(a)involves seri­ous vio­lence against a person,

(b)involves seri­ous dam­age to property,

©endan­gers a person’s life, other than that of the per­son com­mit­ting the action,

(d)creates a seri­ous risk to the health or safety of the pub­lic or a sec­tion of the pub­lic, or

(e)is designed seri­ously to inter­fere with or seri­ously to dis­rupt an elec­tronic system.

There are MANY prob­lems with this def­i­n­i­tion, how­ever it is also clear that under UK law, threat­en­ing to or actu­ally “dis­rupt­ing an elec­tronic sys­tem” — say, by leak­ing the details of British elec­tronic espi­onage over the inter­net — could make one liable for deten­tion under this law.

To be clear, that law is odi­ous and pro­vides for overly broad lee­way by author­i­ties. Despite that, when writ­ers like Andrew Sul­li­van object to it the objec­tion seems to have lost all sense of proportionality.

More to the point, although David was released, his entire dig­i­tal library was con­fis­cated – includ­ing his lap­top and phone. So any jour­nal­ist pass­ing through London’s Heathrow has now been warned: do not take any doc­u­ments with you. Britain is now a police state when it comes to jour­nal­ists, just like Rus­sia is.

Not only was David Miranda not con­ceiv­ably a jour­nal­ist — the title is not tran­si­tive through mar­riage — this is at its most char­i­ta­ble a men­da­cious act of moral equiv­a­lency to Russia’s unbe­liev­ably hos­tile and bru­tal treat­ment of its own jour­nal­ists (sev­eral dozen of whom have been mur­dered in the last few years alone).

But maybe Miranda was a jour­nal­ist? Amnesty Inter­na­tional refers to him as a Guardian employee. At first, the Guardian said noth­ing about the details of his trip through Heathrow; late Sun­day night their story included an update that they were actu­ally fund­ing his travel. And while the Guardian did not include this in its ini­tial cov­er­age, the New York Times reported that Miranda was actu­ally vis­it­ing Laura Poitras to help her with her con­tin­ued report­ing on the NSA and other spy­ing programs.

Mr. Miranda was in Berlin to deliver doc­u­ments related to Mr. Greenwald’s inves­ti­ga­tion into gov­ern­ment sur­veil­lance to Ms. Poitras, Mr. Green­wald said. Ms. Poitras, in turn, gave Mr. Miranda dif­fer­ent doc­u­ments to pass to Mr. Green­wald. Those doc­u­ments, which were stored on encrypted thumb dri­ves, were con­fis­cated by air­port secu­rity, Mr. Green­wald said. All of the doc­u­ments came from the trove of mate­ri­als pro­vided to the two jour­nal­ists by Mr. Snow­den. The British author­i­ties seized all of his elec­tronic media — includ­ing video games, DVDs and data stor­age devices — and did not return them, Mr. Green­wald said.

So basi­cally: Miranda was being a doc­u­ment mule for Green­wald and Poitras, and the Guardian was pay­ing for it. This is no real change of tack. In June, he told the Daily Beast:

When I was in Hong Kong, I spoke to my part­ner in Rio via Skype and told him I would send an elec­tronic encrypted copy of the doc­u­ments,” Green­wald said. “I did not end up doing it. Two days later his lap­top was stolen from our house and noth­ing else was taken. Noth­ing like that has hap­pened before. I am not say­ing it’s con­nected to this, but obvi­ously the pos­si­bil­ity exists.”

Among the doc­u­ments Green­wald pub­lished is evi­dence that the NSA long ago broke open Skype, which is not a secure method of com­mu­ni­ca­tion. More­over, as a Brazil­ian national liv­ing in Brazil, Miranda would not be pro­tected by the same laws that pro­tect Green­wald, an Amer­i­can cit­i­zen, from being mon­i­tored. More­over, he’s almost brag­ging to a reporter that he was enlist­ing his husband’s help in traf­fick­ing stolen Top Secret doc­u­ments across national bor­ders. When com­bined with know­ing his own employer was fund­ing his husband’s travel to col­lab­o­rate with his well-known coau­thor — who is her­self flagged by the U.S. gov­ern­ment — it’s a bit dif­fi­cult to see why any­one would be sur­prised that he would be at the very least ques­tioned by British authorities.

Now, to be clear - that does not excuse nine hours of deten­tion. Such a lengthy time in a hold­ing cell is unques­tion­ably abu­sive, and it is what makes the UK deci­sion so stu­pid. While it’s cer­tain a brief deten­tion that included mir­ror­ing the hard dri­ves of Miranda’s devices — a rou­tine pro­ce­dure in many coun­tries that does not take very much time — would have gen­er­ated a sim­i­lar tone from Green­wald (“Even the Mafia had eth­i­cal rules against tar­get­ing the fam­ily mem­bers of peo­ple they felt threat­ened by,” which is almost laugh­ably igno­rant of the actual mafia and in the equiv­a­lence of a 9-hour deten­tion to the mafia’s vio­lence), much of the extra out­cry almost cer­tainly would not have occurred. Indeed, it could have been jus­ti­fi­able as the sort of proper due dili­gence peo­ple gen­er­ally expect from their bor­der offi­cials when peo­ple openly ded­i­cated to destroy­ing parts of their gov­ern­ment (like GCHQ) who also brag of car­ry­ing around the files to do so travel through.

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.

More imme­di­ately, too, the instinc­tive reac­tion of far too many jour­nal­ists to shriek about their own spouses being tar­geted is going to have a down­side. Few jour­nal­ists would treat their spouses as authority-bait the way Green­wald did this past week­end, and few would tell other reporters, for a pro­file, that they used their spouses to help them avoid intel­li­gence agen­cies. Glenn Green­wald is a very smart man — he knew what he was doing. While we should all con­demn the British author­i­ties for hold­ing Miranda for so long, we should also keep in mind exactly why he might have been sin­gled out — and there a whole new set of com­pli­ca­tions and ques­tions emerge.

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.

Update: In a fol­lowup story, the Guardian prints sev­eral aspects of this story that did not emerge in either their ini­tial report­ing or in Greenwald’s account of it. In the ini­tial ver­sion of the story (later amended to include the detail that the Guardian funded his travel), Green­wald said this:

This is a pro­found attack on press free­doms and the news gath­er­ing process,” Green­wald said. “To detain my part­ner for a full nine hours while deny­ing him a lawyer, and then seize large amounts of his pos­ses­sions, is clearly intended to send a mes­sage of intim­i­da­tion to those of us who have been report­ing on the NSA and GCHQ. The actions of the UK pose a seri­ous threat to jour­nal­ists everywhere.

In his blog post, Green­wald repeated the charge:

The offi­cial — who refused to give his name but would only iden­tify him­self by his num­ber: 203654 — said David was not allowed to have a lawyer present, nor would they allow me to talk to him.

Today, the Guardian inter­views Miranda:

He was offered a lawyer and a cup of water, but he refused both because he did not trust the author­i­ties. The ques­tions, he said, were relent­less – about Green­wald, Snow­den, Poitras and a host of other appar­ently ran­dom subjects.

Step one in this should be mak­ing sure the record is cor­rect. It is false that Miranda was denied a lawyer — he refused a lawyer, which is a cru­cial detail. Far from being evi­dence of tyranny out of con­trol, as Green­wald wants to argue, this sug­gests the British author­i­ties were try­ing to pro­vide his rep­re­sen­ta­tion as the law allows, and he refused. That isn’t the UK’s fault, it is Miranda’s. Then there’s this:

They treated me like I was a crim­i­nal or some­one about to attack the UK … It was exhaust­ing and frus­trat­ing, but I knew I wasn’t doing any­thing wrong.”

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.

90 responses

  1. Thanks for this post. Yes, the British acted with a lack of intel­li­gence, appro­pri­ate­ness, and legal­ity (though you raise an appar­ently col­orable argu­ment). Yes, the deten­tion was appar­ently abu­sive, though by no means bru­tal.
    Inter­na­tional trav­el­ers are gen­er­ally sub­ject to arbi­trary deten­tion and ques­tion­ing (granted, of much shorter dura­tion), and con­fis­ca­tion of elec­tronic devices is not uncom­mon in the US (which I sus­pect is true of many other coun­tries as well). One need not sup­port such behav­ior to rec­og­nize it as a fact of life.
    It’s dis­ap­point­ing that Green­wald failed, in his ini­tial post, to clearly state that Miranda was act­ing as a courier. Sul­li­van, typ­i­cally, neglected this obvi­ous pos­si­bil­ity in his hyper­ven­ti­lat­ing reac­tion.
    I find it wholly unsur­pris­ing that a per­son in Mr. Miranda’s posi­tion would be sub­jected to deten­tion, ques­tion­ing and elec­tron­ics con­fis­ca­tion on tran­sit through Heathrow, and I find it hard to imag­ine this com­ing as a sur­prise to Green­wald or Miranda.

    Among the abuses of west­ern gov­ern­ments in the name of national secu­rity, this is small pota­toes at best.

    • Agreed.

      I am among those that think — using empir­i­cal knowl­edge of acts already com­mit­ted — this may well be a stunt com­mit­ted by the Green­wald team in order to con­tinue to fuel out­rage and keep Mr. Green­wald employed/paid/relevant, Guardian news­pa­pers sold (page clicks included) and a poten­tial Poitras doc­u­men­tary ripe for venue bookings.

  2. Since I can wrap my mind around a com­plex POV — I under­stand what Mr. Foust wrote.

    I partly agree. I am so over the hyper­bole asso­ci­ated with this whole unfold­ing “leak” story — a hyper­bole solely based on the fact that it involves “the press” . No. Nobody gets spe­cial treat­ment JUST because they write stuff that oth­ers read. Period. I’d go on for hours about my opin­ion of today’s jour­nal­ists, but that’s off topic so…

    I don’t have a bit of a prob­lem with the deten­tion of Mr. Miranda — but I do agree the nine hours was a likely exces­sive time frame.

    But, the last para­graph or the arti­cle above is so absolutely and pro­foundly cor­rect… it should be taught in Journalism101 .… if that even exists anymore.

    • NOTE: When I referred to the last para­graph — Mr. Foust had not updated the article.

      The update is so telling — on the mat­ter of jour­nal­is­tic laziness/ineptitude/ lack-of-transparency/ etc. etc.… we should be all the more dili­gent to allow fact to emerge and not jump to con­clu­sions (or feed per-conceived notions) BEFORE all the “news” is made available.

  3. The more we know, the more it becomes appar­ent the drips of “story” in this Green­wal­dian saga are meant to plant “facts” that many will run with BEFORE the actual facts come out. Their per-conceived notions will remain set, damn the truth.

    Thus the out­rage machine is fed… the mes­sen­ger is her­alded [and paid, remem­ber to always fol­low the money] and the peo­ple are def­i­nitely not well served … as is the RESPONSIBILITY of those call­ing them­selves “press”. That respon­si­bil­ity must never be excluded out of the right claimed under the US First Amend­ment. Period.

  4. Sad­der yet, Miranda’s com­ment at the end of his Guardian inter­view today: “…and I believe in my hus­band and knew that he would do any­thing to help me.” This, com­bined Miranda’s com­ment about not know­ing what he was car­ry­ing paints a por­trait of a very naive, used, mis­led and per­haps not-so-intelligent young man.

  5. I think you’re far too glib in reach­ing your con­clu­sion that Miranda’s deten­tion and ques­tion­ing were legal.

    See, for example:

    […]
    “All the above can be worked out just from the Met police confirmation.

    But what makes this case espe­cially inter­est­ing – and, for me, wor­ry­ing – is some­thing which has been reported about what the Amer­i­can gov­ern­ment knew. (Transcript.)

    It is reported that the Amer­i­can gov­ern­ment had advance notice of the detention.

    If this is the case, then this appears to open a seri­ous ques­tion – if the offi­cers knew in advance that Miranda was to be detained, they knew who he was. He was not some ran­dom passenger.

    Accord­ingly, if they knew who he was, then it would seem – to me – that they would not there­fore need to ques­tion and detain him to see if he ful­filled the sec­tion 40(1)(b) def­i­n­i­tion. They knew full well whether he did, or if he did not. The ques­tion­ing would be artificial.

    In other words, by flag­ging the Amer­i­can gov­ern­ment with an advance notice of the deten­tion, it would seem to me that the deten­tion could not have been gen­uinely for the pur­pose of deter­min­ing if Miranda fell within sec­tion 40(1).

    And if that was not actu­ally the actual pur­pose of the deten­tion, then there would be no power to ques­tion, detain and search David Miranda at all.

    But in any case, and 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.”

    - Nine hours in the life of David Miranda
    http://jackofkent.com/2013/08/nine-hours-in-the-life-of-david-miranda/

  6. I have seri­ous dis­agree­ments with your analy­sis, but respect that you gave it some sub­stance. I know you’re prob­a­bly get­ting seri­ous flack from the more ardent Green­wald fans, a prickly bunch at best, but try relink­ing to your longer pieces in more of your tweets. The wall of snark, jus­ti­fied though you may feel it to be, is most likely to push away those with only a cur­sory look at the matter.

  7. Green­wald is a despi­ca­ble user. That poor Miranda kid was used as noth­ing more then a mule, as stated in his own words. ” 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.”
    The more I know about Green­wald, the more I real­ize he is noth­ing more then a has-been who is try­ing to get some sem­blance of ‘glory’, even if it means using a kid who knows lit­tle about any­thing in the real world.

    That GG would use him this way, some­one he pur­ports to care about, is cyn­i­cal and narcissistic.

    Green­wald is a creep.

  8. Really? an attack on an elec­tronic sys­tem? Noth­ing has been dis­rupted, Joshua. The NSA is still mer­rily going about it’s busi­ness assem­bling it’s asso­ci­a­tional database—otherwise known as tele­phony meta­data. They’re still spy­ing on Evo Morales, Clap­per still sits com­fort­ably in his office rub­bing his bald pate. The pub­lic just knows the scale and intru­sive­ness of what they’re doing.

    I won­der why the UK would think he was about to attack them?”

    None that I can see. But it appears you think jour­nal­ists pub­lish­ing doc­u­ments is the equiv­a­lent of a ter­ror­ist attack or hack­ing. Why do you hate a free press?

    And in fact, just this morn­ing, he vowed that he would make the UK “sorry” for hav­ing ques­tioned his partner.”

    Oops. Bet­ter retract that. Actual quote: http://www.twitlonger.com/show/n_1rm09tf

  9. Much as a I agree with your posi­tion Joshua I can’t under­stand why you needed to bring Rus­sia into the arti­cle — in this par­tic­u­lar sce­nario it looks like the crutch is a bit too short to stop the argu­ment from limping.

    • I did not com­pare the UK to to Rus­sia; Andrew Sul­li­van did, and I merely pointed out how idi­otic that is to com­pare a pro­ce­dural stop with Russia’s per­va­sive police abuse.

      • But did not you write this? Not only was David Miranda not con­ceiv­ably a jour­nal­ist — the title is not tran­si­tive through mar­riage — this is at its most char­i­ta­ble a men­da­cious act of moral equiv­a­lency to Russia’s unbe­liev­ably hos­tile and bru­tal treat­ment of its own jour­nal­ists (sev­eral dozen of whom have been mur­dered in the last few years alone) Talk­ing about at least 25+ jour­nal­ists mur­dered by Russ­ian gov­ern­ment? Are you sure?

      • I am los­ing bits of this con­ver­sa­tion on the com­puter — yes I did read the pre­ced­ing para, but I don’t think your reply strength­ens your argu­ment, espe­cially in view of Rus­sia being quite rea­son­able as far as Snow­den sit­u­a­tion is con­cerned, despite Putin describ­ing him as an unwanted Christ­mas present?

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