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.