Buried in the comments: Greenwald, Miranda, Clegg and an indefinite number of documents.

by Naomi Colvin

After a Snowden-imposed absence of a few days Glenn Greenwald posted a new blog early this morning. Of the items in the blog proper, I can definitely recommend David Carr’s NYT piece on journalists waging the US Government’s war against journalists for them. Unfortunately, the same has largely been true in the UK – in part due to wholly unadmirable, parochial concerns like the ones John Naughton points to here.

But there are a couple of interesting points hidden in the comments that also deserve to be drawn out.

Nick Clegg and the reasons for Miranda’s detention

The issue of whether the detention of David Miranda under Schedule 7 of the Terrorism Act 2000 was lawful has been the subject of much excellent legal blogging. Pieces I have found particularly useful include those by Jack of Kent, Head of Legal and Adam Wagner. Daniel Isenberg’s roundup of these posts and others is very useful. And on the wider implications of Schedule 7, Tim Hardy’s article  is also well worth a look.

For David Miranda’s nine hour detention at Heathrow to have been lawful, he had to have been detained for the purposes of determining whether he was a ‘terrorist’, under the terms of the Act. Police do not need a reason to suspect someone is a terrorist to use Schedule 7 against them, but those powers must only be used to determine whether in fact they are a terrorist or helping a terrorist. As law and plain language often take divergent paths, there is a debate about how broadly ‘terrorism’ should understood under the terms of the Act – but there isn’t any doubt that uses of Schedule 7 must be justified in this way.

Last Friday the Guardian published a piece by Nick Clegg which merits little comment other than to note how it was edited post-publication. Hidden in the comments to Glenn’s latest piece is an archived copy of the Clegg article as originally published, complete with the now-deleted sentence at the start of paragraph six:

The intent behind detaining Miranda was the same: to retrieve or destroy classified information.

A footnote on the currently available version of the article reads as follows:

• This article was amended on 23 August 2013 after a request from the deputy prime minister’s office based on legal reasons. The footnote was amended on 25 August 2013 to give greater clarity.

Now, I Am Not A Lawyer – or even a legal blogger – but this particular amendment “for legal reasons” doesn’t increase my confidence that Schedule 7 was used in an appropriate way in David Miranda’s case. Just as concerning is that those in positions of power  – not least those who have posed in support of civil liberties in the past – in practice understand, or care, little about what the restrictions on their powers really are. To the extent that, on a point of law that is the talking point of the week, they don’t notice they’ve overstepped the mark until someone pulls them up on it.

Is the UK Government in possession of decrypted Snowden files?

Given that the UK Government, both in overt statements and in freudian slips like that above, has justified its actions in terms of protecting the public from the disclosure of documents of the utmost sensitivity,  I think also it’s worth taking a look at the factual coherence of those statements, regardless of whether they have legal weight or not.

David Miranda was detained at Heathrow for nine hours. During that time, according to his lawyers’ letter prior to legal action (see para 57):

Our client was required to answer numerous questions and to divulge the confidential passwords to his personal computer, telephone and encrypted storage devices.

Note that it is illegal to withhold encryption passwords from police in the UK.

In public comments and legal statements, the Home Office have asserted that Miranda was carrying “tens of thousands of documents… highly sensitive material.” Major media outlets have reported this as fact.

In light of all this, two responses from Glenn Greenwald (first, second) in the comments section of his latest piece are worth noting:

[UK police] haven’t been able to get access to those documents, as they acknowledged today.

In their court filing. I don’t know the exact numbers, but they said they were only able to access something like 75 documents of the tens of thousands they claim he was carrying – and I’d be willing to bet those 75 they claimed they access have absolutely nothing to do with NSA.

A few points to make here – foremost among them that I hope that the Home Office legal submission Glenn refers to makes it into the public domain soon. Secondly, it would make sense that, if indeed David Miranda were carrying journalistic material, he did not also carry the relevant encryption key(s). That would be sensible.

But, that being so, how can the Home Office assert so confidently that Miranda was carrying “thousands of documents”? Unless police have been able to access the file system on one of the devices Miranda was carrying while not being able to access the files themselves, this doesn’t really add up.

Update

For those not aware of them, services like News Sniffer (for some UK publications) and Newsdiffs (US) track the changes in previously-published articles. It turns out that the Clegg article and its subsequent correction coincided with the Guardian changing its main URL, so – in one of those strange internet quirks – it was missed by News Sniffer.  Thanks to @semanticist and @johnleach for drawing that to my attention.

Update II (5/9)

David Allen Green was kind enough to reference this post at Jack of Kent.

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