The Surveillance Empire Strikes Back

The old joke goes: “Just because I’m paranoid doesn’t mean they aren’t out to get me.” The U.S. intelligence establishment and its allies seem determined to make sure the joke isn’t funny anymore.

David Michael Miranda, whose partner Glenn Greenwald is one of the journalists who has been instrumental in publishing leaked information about the National Security Agency, was detained for nine hours Sunday in London’s Heathrow Airport. Greenwald, who has been publishing information through The Guardian newspaper, was quick to call the incident “a profound attack on press freedoms and the news gathering process.”

Greenwald did not use the word “attack” in a rhetorical or prosecutorial sense; he meant it literally. Adding weight to his assessment, Guardian editor Alan Rusbridger disclosed Monday that the newspaper itself has been subjected to a campaign of official, yet shadowy, intimidation – culminating in a scene last month in which some of the Guardian’s computer equipment was smashed to bits in the newspaper’s own basement, under the watchful eyes of operatives from the Government Communications Headquarters, or GCHQ, Britain’s counterpart to the NSA.

Miranda, who was on a trip paid for by The Guardian but who is not himself a journalist, was held under the authority of the British Terrorism Act during a layover on his journey from Berlin back to his home in Rio de Janeiro. Greenwald said Miranda was denied access to a lawyer and authorities confiscated all the electronic equipment Miranda had with him, including his cell phone and his laptop, but also DVDs and video games. Miranda himself told the Guardian that he was threatened with jail if he did not offer authorities the passwords needed to get access to his devices. He surrendered the information.

“I was in a different country with different laws, in a room with seven agents coming and going who kept asking me questions,” Miranda said. “I thought anything could happen. I thought I might be detained for a very long time.” Under Schedule 7 of the United Kingdom’s anti-terrorism law, police can hold an individual who is not under suspicion of any crime for up to nine hours while transiting a British airport or seaport. The detainee has no right to speak with an attorney during that time.

The detention of Miranda, whose only connection to terrorism is that he lives with a journalist who reports on what governments do in the name of fighting it, underscores how determined the intelligence community has become to flex its muscles. It is reasonable to conclude that political leaders who ought to be skeptical of these agencies are not going to rein them in – either because they don’t want to, or because they can’t. I’m not sure which prospect is more worrisome.

White House spokesman Josh Earnest said the Obama administration was given a “heads-up” about the detention but denied that the U.S. requested it. He would not say if British officers shared what they learned. In London, the BBC reported yesterday that Prime Minister David Cameron was “kept abreast” of the detention, but did not say whether he authorized it.

This incident is far from the first sign of trouble for journalists pushing back against the intelligence community. Laura Poitras, who collaborated with Greenwald in making public Edward Snowden’s information about the NSA, spent six years being routinely detained in the U.S. and abroad when traveling without knowing specifically why. Miranda was visiting Poitras in Berlin, which suggests the true reason for his detention; Pointras expressed in a recent New York Times profile that she continues to worry about surveillance and efforts to seize the remaining unpublished information from Snowden still in her custody.

Individuals like William Binney, a former NSA staffer who accused the agency of illegal activity, and Jacob Appelbaum, a privacy advocate and WikiLeaks volunteer, have faced the seizure or attempted seizure of their personal records or online accounts without being charged with any crime. And in the wake of the NSA disclosures, some politicians made clear they thought journalists should be punished harshly for disseminating leaked information.

In a curious way, the British intelligence establishment may have even more at stake in stopping the Snowden revelations than does the NSA itself. U.S. law severely restricts the agency’s ability to gather data on American citizens; the crux of the debate on our side of the pond is whether those restrictions are sufficient and whether they are being enforced.

But nothing stops the NSA from gathering all the data it can get on foreigners, including Britons. Much of that data is presumably shared with intelligence officers in closely allied countries. The U.K. has a terrorism problem much worse than ours; its security officers are understandably intent on stopping plots by whatever means they can. Anything that threatens the NSA’s long-term ability to gather data also threatens British authorities’ ability to use it.

An unintended side effect of this campaign to harass journalists and those who help them may be to encourage leaking and journalism that is less responsible, and consequently more dangerous. Pfc. Bradley Manning unleashed a massive data dump on WikiLeaks, much of which had little public importance but which threatened intelligence sources and methods – including the lives of individuals who helped Western powers at great personal risk.

The Guardian and The Washington Post, which also received some of Snowden’s data, have taken pains to make their reporting accurate and relevant. Their stories still disclose intelligence methods, of course, since the methods employed by the NSA are the essence of the story. But no intelligence collaborators are known to have been put at risk by the reporting of Snowden’s material. If authorities are going to try to seize such material when it is in journalists’ hands, journalists will be tempted to pre-empt the seizure by publishing everything first and then sorting out what it means later.

The surveillance empire seems prepared to strike back with any tools at its disposal. Some will be judicial or quasi-judicial, and some will be political, such as threats to make anyone who opposes the spooks appear soft on terrorism. The British Home Office played along yesterday.

“If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that. Those who oppose this sort of action need to think about what they are condoning,” the Home Office said in a statement. The implication is that we condone terrorism if we dare question the detention of a foreign traveler at Heathrow, the confiscation of his possessions and the forced surrender of his passwords, all without legal representation or court supervision. It sounds more to me like condoning limits on government power that are more in keeping with those of English and U.S. legal tradition than with the practices of regimes like Russia’s and China’s.

It’s bad enough that the congressional oversight committees appear to have been captured by the agencies they are supposed to oversee. It now looks as though the Obama administration and the U.K. government have been likewise co-opted. It is going to take a lot of work and a lot of guts to make these agencies accountable to the laws that bind them and to the public they are supposed to protect.

Defending privacy and civil liberties need not be an exercise in paranoia, but I’m starting to think that a little paranoia may not hurt.

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