Conservative parliamentarian Liam Fox, Britain's former defense secretary, is urging his country's top prosecutor to investigate whether The Guardian and its journalists violated The Terrorism Act 2000 while handling Edward Snowden's leaks.
He is focused on the newspaper's decision to partner with foreign publications like The New York Times. "There have been further accusations that The Guardian passed the names of GCHQ agents to foreign journalists and bloggers. Would such activities, if true, constitute an offense under the Terrorism Act 2000 or other related legislation?” Fox asked in a letter to the director of public prosecutions, adding a question about how a prosecution might be initiated.
These actions are ominous.
Many if not most Western democracies have passed laws aimed at terrorism in recent years. They're invariably sold to the public as measures aimed at those who would set explosives in public places, strap on suicide vests, or otherwise kill masses of civilians. As a result, these laws have given governments more leeway than usual.
What we're seeing in Britain are attempts to turn laws sold as anti-terrorist weapons against journalists. The Guardian entered into the Edward Snowden story after the American contractor decided to leak information to an American living in Brazil and another living in Berlin. The three of them met one another in Hong Kong. Subsequently, the British newspaper published some of the revelations, and decided to enlist journalistic partners abroad to help publish others. I don't know the intricacies of British terrorism laws, and it wouldn't surprise me a bit if I found out that they are so overly broad as to guarantee abuses. But I hardly think this is the sort of scenario the parliamentarians who passed them had in mind, or that the laws would have passed in their current form if Britons knew at the time that prominent politicians would try to turn them against The Guardian.
Of course, this isn't the first time officials in the British government have invoked terrorism laws to target journalism that they believe should be suppressed.
Glenn Greenwald's partner, David Miranda, was detained in Heathrow Airport under Schedule 7 of Terrorism Act 2000. The British government says that he was acting as a courier for documents stolen by Snowden. Notice the disconnect here. Even if Miranda was carrying all the Snowden documents, how does that justify detaining him under a terrorism law? That is, of course, one of the questions being raised in the legal challenge now being adjudicated in a British court.
The BBC has been covering the case:
Steven Kovats QC, representing the home secretary, told the court the secret material taken from Mr Miranda could have ended up in the hands of al-Qaeda. Mr Miranda's lawyers say the detention at Heathrow was illegal because it was carried out under the wrong law: Schedule 7 of the Terrorism Act 2000. They argue that in reality he was detained on the say-so of the security services so they could seize journalistic material. But Mr Kovats told the court: "In broad terms there is more to terrorism than letting off bombs."
Terrorism no doubt encompasses more than letting off bombs. But carrying documents from one journalist to another? Is Britain really asserting that can be terrorism?
This Reuters report leaves little doubt:
At a London court hearing this week for Miranda's lawsuit, a document called a "Ports Circulation Sheet" was read into the record. It was prepared by Scotland Yard - in consultation with the MI5 counterintelligence agency - and circulated to British border posts before Miranda's arrival. The precise date of the document is unclear. "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," according to the document.
"We assess that Miranda is knowingly carrying material the release of which would endanger people's lives," the document continued. "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..."
Trevor Timm is appropriately appalled:
Think about the sheer breadth of that statement.
Not only are several Guardian reporters and editors also guilty of engaging in “terrorism” under the UK government’s logic, but so are New York Times or Pro Publica journalists who have received the same news-worthy documents for publication. If publishing or threatening to publish information for the purpose “promoting a political or ideological cause” is "terrorism," than the UK government can lock up every major newspaper editorial board that dares write any opinion that strays from the official government line. No matter one’s opinion on the NSA, the entire public should be disturbed by this attack on journalism. In fact, this is exactly the type of attack on press freedom the U.S. State Department regularly condemns in authoritarian countries, and we call on them to do the same in this case.
It is worth remarking on how people accused of terrorism have been treated in recent years: they've been killed in drone strikes; captured and held without charges or trial; stripped naked in frigid rooms, doused with cold water, and left for hours; strapped down so that water could be forced into their lungs; sexually humiliated. And now David Miranda, The Guardian, and its journalists are being conflated with terrorists, not by jingoistic trolls in the freewheeling comments sections of blog posts, but by government officials willing to set the precedent that threatening to disclose information can fit within the working definition of terrorism. A Miranda victory in court would be an important start to a necessary backlash.