The Miranda Detention: Troubling from all Sides 90

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

(c)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,

(c)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.