Update, November 7, 12pm:
In the second day of testimony, government lawyers said they used the correct procedures in detaining Miranda for nine hours and confiscating his electronic devices in order to prevent further dissemination of the raw data provided by NSA whistleblower Edward Snowden. They believed they could correctly detain Miranda as a terrorist. Steven Kovats also rejected the argument made yesterday by Miranda’s lawyer that the law protected responsible journalists. Just because you’re a good journalist doesn’t mean you understand the seriousness of material in your possession, he said.
Lord Justice John Laws, the presiding judge, appeared to agree. “I’m not sure I know the meaning of the phrase ‘responsible journalism.’ It doesn’t make a journalist omniscient in security matters. It’s just rhetoric, really,” he said.
Original story, November 6, 12:40pm
David Miranda, Glenn Greenwald’s partner, was in a UK court today challenging the legality of his nine-hour detention at Heathrow under anti-terror laws in August and requesting the return of confiscated material.
Under tough questioning from a three-judge panel, Miranda argued that the UK government illegally detained him and that the materials he was carrying were protected.
The reigning Lord Justice John Laws said at issue was whether Miranda was correctly detained under the UK’s Schedule 7 anti-terrorism rule regarding stopping and seizure at border crossings. Government lawyers argued that not all the documents Miranda had were covered as a journalist and that they could have endangered lives. The purpose in stopping Miranda was to “neutralize” the effects of “improper dissemination,” of sensitive material, Laws said.
Greenwald is the ex-Guardian journalist who first broke the story of NSA spying with a trove of materials from whistleblower Edward Snowden. Miranda was carrying copies of materials related to the story from Berlin back to Brazil, where he lives with Greenwald, when UK police stopped him during a layover in London. Material included nine electronic devices that held 58,000 documents, according to the government. Miranda was not arrested or charged with any crimes.
The Guardian’s editor, Alan Rusbridger, has said that the UK government also forced the paper to destroy hardware. This happened even though the Guardian told police that multiple copies were held in other countries. “I was happy to destroy it rather than give it back to the government and simply continue to report from New York,” Rusbridger said at the time.
But Paul Bernal, a media lecturer at the University of East Anglia, said he thought the issue had less to do with whether Miranda got back his game consoles and laptop.
It's not just the #miranda incident that's 'on trial' right now: it's the extent to which our laws protect freedom of speech. (my opinion!)— Paul Bernal (@PaulbernalUK) November 6, 2013
In an interview, Bernal said that based on the questions from the three judges, the court may be thinking that if an action could endanger lives, then it might be acceptable to seize and prevent publication.
“That’s a very delicate balance, and if ‘security’ wins that balance by default, freedom of speech is in trouble,” he said.
In preparation of the hearing, UK officials filed a document into the record called the “Ports Circulation Sheet.” In it, the British government said it believed Miranda’s activities fell within the definitions of terrorism. Prepared by Scotland Yard in consultation with the MI5 counterintelligence agency, the paper, which was not dated, was circulated to border posts before Miranda traveled. According to Reuters, the document reads, in part:
Intelligence indicates that Miranda is likely to be involved in espionage activity which has the potential to act against the interests of UK national security. …
We assess that Miranda is knowingly carrying material the release of which would endanger people’s lives. … Additionally the disclosure, or threat of disclosure, is designed to influence a government and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism.
At the Wednesday hearing, Miranda’s lawyer, Matthew Ryder, rejected these claims. Stopping Miranda under the Schedule 7 anti-terrorism law was not proper, especially when the government knew the Brazilian would have a layover at Heathrow. He argued that Miranda should have been stopped under normal UK law, which would have protected him as a journalist.
Ryder: police had 3 days to get court order from judge to seize material from #Miranda but did not seek one.— matt prodger (@MattProdger) November 6, 2013
Miranda was carrying source materials for journalism, which was in the “global public interest,” Ryder said. Therefore, the powers used to detain Miranda and seize his materials were “exercised for an improper purpose.”
Ryder said the dominant purpose of the police action was not to determine whether Miranda was involved in any acts of terrorism, but to “assist the Security Service [MI5] in accessing material in the claimant’s possession.” Exercising the powers under Schedule 7 was a “disproportionate interference with his right to freedom of expression,” Ryder said.
At one point Laws and Judge Duncan Ouseley asked Ryder what constituted journalistic activity.
Laws LJ: how can raw documents become journalistic just because a journalist has them? #Miranda Ouseley J: when does it become journalistic?— Carl Gardner (@carlgardner) November 6, 2013
Ryder answered that he believed raw source material could be considered journalistic if it’s being held with the intent of using it for responsible reporting.
Steven Kovats, an attorney for the government, said he agreed that some of the material had been used for reporting. But he added: “We do not understand that raw Snowden data is journalistic material.”
Bernal, the UEA lecturer, said it was hard to judge how the court would rule. “I am not optimistic for Miranda’s side,” he said. “The questioning has been tough and probing—the suggestion has been made that the publication of the stories has endangered lives.”
Thursday, the government will be presenting its case, in which it must defend the actions of the police and security services. “We have to wait and see whether the questioning is equally tough on the government side of the story,” Bernal said.