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Tuesday, August 20, 2013 

The revealing of the secret state.

It seems best to start with an apology.  Yesterday, I said the most likely explanation for the detention of David Miranda at Heathrow was that it had been requested by one agency or another in the United States.  As has since become clear, it appears that while authorities in the US were "tipped off" that Miranda was to be detained and much of his property stolen, they in fact didn't ask for it to happen.  Instead, it seems most people, myself included, seem to have completely underestimated just how disingenuous and above the law our very own security services continue to regard themselves.  Moreover, the US authorities didn't have a problem with answering questions about Miranda's detention, unlike our own, who instead seem to positively revel in their abuse of terrorism legislation.  For portraying the US as the bad guy in this instance, I'm sorry.

Not that we're any closer to knowing whose idea it was in the first place for Miranda to be detained under Schedule 7 of the Terrorism Act 2000.  Opinion differs as to whether or not detaining Miranda under this provision was expressly unlawful or not, such is the breadth of the discretion given when someone is sort of in this country while also sort of not - David Allan Green thinks it was, while others disagree.  In any case, this is not even what the government itself is now arguing.  Rather, the defence from both the Home Office and Theresa May is not that Miranda could potentially have been a terrorist, but rather that he may have been in possession of "stolen information that could help terrorists".  Section 40 of the Terrorism Act defines a terrorist as someone "who…is or has been concerned in the commission, preparation or instigation of acts of terrorism".  Clearly, as even the home secretary herself is arguing, Miranda didn't fall under this category.

Let's take a step back for a second and just get our heads around this.  Effectively, our own government is making the exact same argument as the US tried to pin on Bradley Manning; that whether he intended it or not, his actions through leaking hundreds of thousands of documents aided the enemy.  The court martial decided that Manning was not guilty of that charge.  In this case, no one who isn't either completely in thrall to the arguments of the securocrats, or is Louise Mensch, believes that the whistleblowing of Edward Snowden has aided terrorists.  There is the possibility that in the raw the files Snowden had and has could be of use to those who wish to target agents in the field, but Snowden, unlike Manning, has only provided them to media organisations that are reputable and have in many circumstances self-censored, beyond the point at which many would think they should have done.  We can't know what's going on in Russia, or whether there's a quid pro quo between Snowden and the government there, but that doesn't affect the documents provided to Laura Poitras and Glenn Greenwald which both are continuing to work on.

Unless the Home Office is seriously suggesting then that those who have so far been completely scrupulous in their work, even if the US and UK governments hardly like it, were suddenly going to either provide material to al-Qaida directly, or the Guardian was going to do so through its website or paper, then this has all been about intimidation, as Greenwald himself said at the outset.  As Alan Rusbridger sets out in his extraordinary piece on what the paper has been up against since it started publishing the documents obtained by Snowden, they've quickly realised that the only way to properly ensure that they can continue to carry out such journalism is by shifting it, ironically enough, to the US, where it's protected (somewhat) under the constitution, and doing the old fashioned thing of exchanging data on drives in person.  This is what it seems Miranda was doing, travelling between Brazil and Germany, acting more as a courier than a journalist.  Whether the police had any knowledge whatsoever of what was on the equipment he was carrying is unclear, and the Graun/Poitras/Greenwald certainly aren't letting on.  That he was possibly carrying stolen information is nonetheless irrelevant, as he wasn't detained on suspicion of any such thing.  Even if the letter of the law has not been broken in this case, the spirit most certainly has.

As Rusbridger makes clear, having failed in this instance to get the whistleblower himself, the security state is now after the journalists instead.  So far, as is described, the method is intimidation.  Demanding that the Guardian hand back the Snowden documents, destroy them, or be taken to court was utterly pointless on every measure other than as an example of what could happen when the government knew full well that the paper had other copies in countries outside the reach of the UK.  Equally, fighting the demand wasn't worth the time or money when the paper could just carry on as it has done.  Likewise, detaining Miranda wasn't about protecting the public; it was about showing that they could do it.  Whatever it was Miranda exchanged between Poitras and Greenwald, both will have backup copies.  And as an aside, those commenting that they hope the Graun and the journalists have sufficient security to ward off hackers ought to remember that in the cases of both Manning and Snowden, neither were senior figures but relative juniors, both of whom were nonetheless trusted with access to a plethora of sensitive information.  These were accidents waiting to happen.

What this entire incident ought to lead to is scales falling from eyes at just how our secret state operates.  Snowden, Greenwald and the Guardian revealed, despite what the likes of Tim Stanley have written, that GCHQ in alliance with the National Security Agency have all but "mastered the internet".  They tap the fibre cables coming into and going out this country, and store not just the metadata but the actual content of messages sent online for three days.  In spite of this, they wanted and continue to want the power to merely keep the metadata from internet activity, albeit with most government agencies being able to access it should they so choose.  Without the above, we wouldn't have had the slightest knowledge that our intelligence agencies had access to such a vast amount of personal information without even the slightest of controls; what we also know is that this huge operation is legal thanks to an act of parliament that was written over 13 years ago and was never intended for such use.

These reports were quite clearly in the wider public interest, as was the revelation that the NSA pays GCHQ up to £100m a year for its services.  The response from the government has been to say that if you've got nothing to hide you have nothing to fear, and to put pressure on other newspapers and broadcasters not to repeat or follow up the Graun's reports, with the D-Notice committee also spurred into action.  Most were happy to oblige, it should be noted, including those who denounced the royal charter setting up a press regulator as being the end of the free press as we knew it.  Unable to shut the paper up, it's now turned to invoking terrorism and acting as authoritarian states do, detaining people and confiscating their possessions.  These aren't the actions of a state that does everything to protect its own citizens, they're the actions of a state that does everything to protect itself from proper scrutiny, one that claims that the police are "operationally independent", at the same time as the lackeys of politicians threaten journalists for doing their job.  It's a state that decides when a "public debate" is deemed to be over (whenever it says it is) and that hides behind the possibility of Russia or China gaining access to such information, as though it wouldn't be easier for either to just plant another Manning or a Snowden themselves, considering how lax their own security has been exposed as, or as though either Russia or China don't already know plenty about what GCHQ and the NSA have been up to.  They lie, they cheat, they steal, and then they point the finger elsewhere when the blame lies squarely in their court.

A frequently cited argument is that while the current government might be relatively benign, it doesn't bear thinking about what might happen if an extreme one came to power and made use of the same tools available for fighting terrorism and crime.  Frankly, we've reached the point at which we ought to be deeply concerned at how this "relatively benign" government decides that the ends justify the means.

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