Why we should consider the detention of David Miranda and destruction of the Guardian’s data as distinct issues

The conflation of the detention of David Miranda, the partner of Guardian journalist Glenn Greenwald, and the story of the Guardian having destroyed the computers on which a version of the data released by Edward Snowden was stored was perhaps inevitable, and has certainly been encouraged by the Guardian. But we should avoid considering the issues as a single whole, for there are separate arguments at play in each in relation to the actions of the state and others, particularly when it comes to the actions of Liberal Democrats in government.

I have relatively few concerns about the state’s actions regarding the Guardian’s storage of highly confidential data. It seems to me perfectly natural and lawful that the government would be deeply worried about state secrets being stored on a newspaper’s computers, and would want to use whatever legal remedies are available to it to prevent that situation. Indeed, one could easily make the argument that they would be remiss not to do so; what, otherwise, would be the point of official secrets and the regime in place to protect them?

That the Guardian chose to destroy the computers instead of defending any legal action is not a matter for the state; it is probably a reflection primarily of the Guardian’s lack of confidence in their legal case (which may raise questions of the legislative regime). But newspapers and journalists must take their own view, just as the Sunday Times did when it capitulated to legal pressure to release the information which led to the conviction of Chris Huhne and Vicky Pryce. But these are matters of journalistic ethics; David Cameron, Nick Clegg and Jeremy Heywood cannot, in my view, be criticised for their actions (though some have questioned the efficacy of destroying this data when there are several copies – that is a different argument).

So I have no problem with Nick Clegg’s prior knowledge and defence of the government’s actions on this front.

Where I feel deeply uncomfortable is over the detention of David Miranda.

That New Labour’s terrorism laws are deeply illiberal comes as no surprise to any Liberal Democrat, given our record of opposing the knee-jeck authoritarianism which so dominated Labour’s time in power.

But I share the view of David Allen Green that Miranda’s detention was unlawful. And given the incredibly widely-drafted, broad scope of this particular provision, that really is saying something.

The involvement of the home secretary and notification provided to the White House only serve to make the case more disturbing.

It is reassuring, therefore, that the independent reviewer of terrorism legislation, David Anderson QC is looking at the detention. And he, fortunately, is a holder of this office in whom I have (and I think Lib Dems can have) confidence.

Which brings us to Nick Clegg’s response. He is clear that he did not know about the proposed detention before the event. That is unremarkable. The rest of his response is as follows:

Liberal Democrats have long stood up for the civil liberties of British citizens and, as you know, the Coalition Government inherited a number of over-broad and draconian terrorism powers from Labour. In Government we led a review of these powers. Some have already been changed and the Coalition is currently pressing Parliament to tighten up these laws further to avoid abuses, including reform of Section 7 which was introduced by the last Labour government. We recognise the serious concerns raised over the detention of David Miranda. The Independent Reviewer of Terrorism Legislation is investigating this and we will wait to hear his conclusions.

This tone of cautious scepticism is notably different to the home secretary’s strong defence of the detention, and we should not underplay that. Matters of this nature are probably the most difficult for a coalition government to deal with and realistically I don’t think Clegg could have gone further than he has in this statement.

And if New Labour taught us one thing it is that knee-jerk reactions to surprising events are precisely the opposite of what we should aim for.

On the face of it, David Miranda’s detention appears to me to be unlawful and deeply concerning. But there are now two processes underway which will reveal more details and allow us to take a proper view: David Anderson’s investigation, and the judicial review claim which Miranda himself is in the process of making (and it is well worth reading Miranda’s lawyers’ letter in full).

But if cautious scepticism is the correct response to this particular incident, we as a party should be enthusiastic in continuing our work of unravelling Labour’s terrorism laws. Notwithstanding the disaster that is the Justice and Security Act, the coalition has made some good progress on this front, and as Clegg’s statement says there are reforms of the very legislation under which Miranda being proposed at the moment.

But treating these issues with the gravity they deserve means distinguishing between state actions which look proportionate and reasonable and those which do not.

* Nick Thornsby is a day editor at Lib Dem Voice.

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41 Comments

  • I agree with the gist of this post, that the two acts should not be conflated.

    What I completely fail to understand is why, in the middle of stories conflating the two acts, we have Nick Clegg coming out and ‘fessing up to (and defending his involvement in) one of the acts and remaining silent on the other. In particular, against the backdrop of his coalition equivalent remaining entirely silent on the issue, dodging the flak in Cornwall.

    It is yet another example of the Lib Dems being horribly outmaneuvered in this coalition. Clegg’s statement, containing support of the hard drive vandalism and saying nothing on Miranda, gives the impression (rightly or wrongly) that he, at least tacitly, supports the action taken with regard to Miranda. With him saying he authorised the contact with the Guardian over the hard drives, and Cameron remaining silent, it gives the impression it was Nick’s decision alone.

    The party seriously needs to start to be content to differentiate itself from its coalition partners. I would seriously hope it could do so on this issue. That it hasn’t yet is worrying.

  • Tony Greaves 21st Aug '13 - 8:16pm

    Does anyone seriously believe that there were only three copies of this stuff in existence? If I were the Guardian and had been given notice of an appointment to destroy hard disks, I’d have made sure that there are other copies in a number of different places including in this country.

    Of course these are two separate issues. There are other issues such as the revelations about total surveillance and the fact none of our emails are secure, which we have learned as a result of the actions of the people involved. But they are all part of the same larger picture.

    A state which is becoming ever more intrusive and over-bearing, and its attempts to prevent citizens knowing about this. We used to have a party which said “we do not agree with this kind of thing”.

    Tony Greaves

    Tony Greaves

  • Seriously just get out of this party. You are destroying it from within.

  • Nick T Nick Thornsby 21st Aug '13 - 8:21pm

    Great engagement with the substance of the issue there, Dave.

  • The current proposals on Sch 7 appear to be to reduce the detention time to 6 hours, and to allow access to legal representation after 1 hour.

    The need for reasonable suspicion is the basic missing bit here, hopefully this will now be addressed.

    Clearly this was a flagrant abuse of already sweeping Labour powers, thanks to the Cameron/May attempt to earn brownie points with Obama.

  • “But newspapers and journalists must take their own view, just as the Sunday Times did when it capitulated to legal pressure to release the information which led to the conviction of Chris Huhne and Vicky Pryce.”

    But the Sunday Times had already been given a court order to release that information. IIRC they were appealing against that decision and that was the proceedings they decided not to take further. The matter had already been considered by the courts.

    It is usually the case that the media require a court order to disclose material even when there is a clear public interest to do so. I can think of a few times when I’ve read of such court proceedings.

    That is very different from the Guardian situation where no legal process was involved at all.

  • To engage with your viewpoint would be to give it a legitimacy, to suggest it was of equal standing in this party. It is not. It is a rogue element, our very own militant tendency.

  • “David Cameron, Nick Clegg and Jeremy Heywood cannot, in my view, be criticised for their actions”

    What an odd viewpoint. They attempted prior restraint against a news organisation, why on earth wouldn’t we criticise them for that?

    So yes, I agree that there are two distinct issues, but that really just means that Nick Clegg’s failed us twice instead of once.

  • Sadly, I am old enough to remember the phrase “loose lips sink ships”. This is 1000x more true with electronic information.

    If the Guardians correspondent had used his partner to try and smuggle drugs through customs, there would not be this outpouring of sympathy – that terror legislation was used is a different issue.

    I find nothing “brave” about the journalistic tendency to cut and paste content from illegally leaked information and then posture as though they had crawled across.barbed wire to get it

  • Nick T Nick Thornsby 21st Aug '13 - 8:46pm

    Hywel – yes, but that was the Guardian’s decision, so I don’t think there is a substantive difference. Journalists and newspapers ultimately have to take a view. I disagreed with the ST’s decision to hand over the info, but I don’t for a moment criticise the CPS for seeking the court order.

  • Richard Marbrow 21st Aug '13 - 8:49pm

    Painful as it is to have to disagree with Nick Thornsby I have to take issue with the first part of his post.

    The Government had many many legal options to deal with the Guardian and none of them are sending the Cabinet Secretary round to have a word. That is how the mafia does things, not governments. If there was a legal reason to do something the Government should use legal process. When governments use informal methods to enforce national security considerations on the press they are operating outside of the rule of law. Generally speaking this is not something Liberals should encourage governments to do as historically it does not end well.

    Did the Guardian choose to destroy the computers instead of defending a legal action or were they effectively under duress? If the senior UK civil servant came to me and told me to destroy something I would do it. If the government sued me, then my lawyer (probably Morgan and Thornsby LLP) would enable me to make decisions. If the government has a legal case it should take legal action.

    If we have equal protection under the law for everyone then it applies to the Guardian just as much as it does to the vulnerable.

  • A Social Liberal 21st Aug '13 - 8:54pm

    Like it or not Dave, Hywels viewpoint (and that of every other member) has equal validity both on LDV and within the party. If you hold the view that it should not then I would advise you to follow your own advice and find another party because the viewpoint you have posted is not one I would have associated with Liberal Democrats.

  • Caron Lindsay Caron Lindsay 21st Aug '13 - 8:59pm

    I hope that Morgan & Thornsby would defend you pro bono, Richard..

  • Eddie Sammon 21st Aug '13 - 9:00pm

    I broadly agree with the article and I think it was a well thought out and informed piece, much better than a knee-jerk reaction.

    I was shocked that the US and the UK had the power to detain someone’s relative and I think the police state has got out of control.

    Regarding the destruction of documents: yes the legal route would have been preferable, but if the Guardian thought they would lose the case anyway then what would be the point?

    Regarding the way the law is as it stands: it is absolutely right that it is illegal to publish official state secrets.

    Should the state keep secrets: absolutely for military purposes.

    Are the state keeping too many secrets? I would say yes, especially with things such as secret courts. I think we need much more transparency on the activities of the state. We should not be torturing people to get people to admit to things they might not have even done. It is not humane.

  • Nick T Nick Thornsby 21st Aug '13 - 9:02pm

    Richard – not often we disagree! Though actually I’m not sure we do disagree as such, but come at it with a different viewpoint 🙂

    I essentially see the government’s actions as part of the legal process (akin, funnily enough, to the pre-action protocol letter Miranda’s lawyers sent). Legal remedies don’t just take place in the court room; they operate in the shadow of the law.

    I totally get your concern, but Jeremy Heywood speaking to Alan Rusbridger is (I would say) a reflection (1) of Rusbridger’s seniority and (2) the importance of the issue.

    I suppose what you could say is that government lawyers should have done all the corresponding with the Guardian, but I am not entirely convinced that changes the substance of the debate.

  • Eddie Sammon 21st Aug '13 - 9:07pm

    I would like to add that I am not an expert and I don’t like giving opinions on things I am not well informed about, I just thought I would say what my gut instincts where: that I didn’t like the detention of David Miranda, but I couldn’t see the huge deal with what happened at the Guardian. The Guardian don’t live in a lawless vacuum where they can publish official state secrets at will.

    I understand it would have been better to send a police officer to the Guardian, rather than a cabinet minister, but we do not live in a perfect world and not everything is done according to 100% best practice every time. We should not be calling for someone’s head when they fail to do something less than perfectly.

    Sometimes I think the party expects too much from our politicians, they are only human.

  • @ A Social Liberal (apparently) – liberalism is not a free for all, its not licence. Not all views are equally valid. Why would they be, especially in a political party of all things – we are partisan!! Or are you the type of liberal who when a lib dem member, say, defends female circumcision on grounds of freedom of religion does not criticise them but bangs on about all views being valid?

    Rather undermines your own argument that you say all views are equally valid in this party except when it comes to those who disagree with that – for them its the door so I suppose you don’t think all views are equally valid in this party? Or does this just apply to certain issues that you get to choose, like this Guardian case, and not other issues, like whether all views are equally valid in this party?

    I am afraid you have fallen into a trap that certain elites, including party elites, set for people. They engineer a debate when there isn’t one to be had. By doing so they give the impression that there are, say, two legitimate viewpoints. At that point they have already won -they don’t have to win the debate, they just have to create the impression that there is a debate. In doing so they edge the party closer to their point of view and the party, as many people can see from this episode, loses its reputation for civil liberties. Why? Because we are debating whether to have them rather than advocating them. I refuse to play this game.

    I realise you wish to be open minded. The problem is some people are so open minded they risk letting their brains fall out.

  • “Hywel – yes, but that was the Guardian’s decision, so I don’t think there is a substantive difference. ”

    Yeeeees – in legal terms “i don’t think there is a substantive difference” usually translates as “there is no difference but if I concede that point it will undermine my entire case”. But in this case it really really isn’t.

    The Sunday Times were subject to a court order – a Judge had considered the competeing merits of journalistic privacy and the need for evidence in a criminal investigation. The delay was over them appealing it which the eventually decided to drop. That is a world of difference from there being no court order but the government of the day just asking to destroy something.

    The government’s argument seems to be that if they had taken legal action the Guardian would have been stopped from printing articles they have (a) printed and (b) no legal proceedings have been brought to prevent the publication. The idea that there isn’t a legal route to preventing the possession of or publication of confidential information of a security sensitive nature is nonsensical. What we seem to be talking about here is information which compromises the nations security but yet is not something where there is a public interest in its publication. Why would there be problems with a court order to require the destruction or return of that?

    As to restricting the guardians ability to publish – easy. Just ask the Judge to make any order in terms which doesn’t impose such a restriction.

    “I essentially see the government’s actions as part of the legal process (akin, funnily enough, to the pre-action protocol letter Miranda’s lawyers sent). Legal remedies don’t just take place in the court room; they operate in the shadow of the law.”

    What??? How is this similar to a pre-action letter which requires setting out:
    The basis of the claim
    A summary of the facts and
    What the claimant wants from the defendant;

    Maybe “sending the boys round to smash everything up” is a new form of ADR that’s appeared in the pre-action protocols since I last looked 🙂

  • Tony Greaves 21st Aug '13 - 9:44pm

    I am confused by this discussion. I can’t work out who is disagreeing with who (m if you want). Who does “Dave” want out of this party – me, Nick Thornsby, Hywel…?

    Who is Dave? Perhaps if people identified themselves things would make more sense.

    Tony.

  • “The government’s argument seems to be that if they had taken legal action the Guardian would have been stopped from printing articles they have (a) printed and (b) no legal proceedings have been brought to prevent the publication.”

    Of course, the Guardian’s view was that the broadly based action that would stop them printing action was a threat deployed by the government to achieve the specific aim of getting them to hand over or destroy the data. Presumably on the basis that the government doubted whether it could achieve the specific aim by legal action?

    That would look very bad indeed – ministers wish to influence the behaviour of the press, cannot achieve that by legal action, and therefore try to blackmail the press into doing what they want using the threat of a different legal action that would be inconvenient and costly for them.

  • Nick T Nick Thornsby 21st Aug '13 - 10:24pm

    Tony Greaves –

    I’m not entirely sure, but I assumed it was me!

    Hywel –

    It’s not similar, but it is analogous (!) in the sense that it is a form of pre-action negotiation. It was, granted, done in an unconventional way, but I don’t think materially affects the analogy. The way I see it is that the government threatened legal action and the Guardian caved. They had a choice and they exercised it. There wasn’t a need for (and indeed couldn’t have been) a court order because the Guardian chose to give the government its remedy before any proceedings.

    I don’t see there would be a *problem* with a court order and agree with your analysis. The point is that a court order wasn’t necessary because of the actions of the Guardian.

  • I have a lot of sympathy with Nick’s position here. As DPM any comment defending a leaker, and ergo protesting at the destruction of government information no longer in government hands, unless it can be clearly shown to be in the national interest in a court of law, would have far reaching legal ramifications I suspect. As such I think cautious scepticism is the only reasonable response. Hopefully the review of Miranda’s detention will get short shrift it deserves and we’ll use that as justification to add further safeguards, or better still, get rid of the law altogether. But I’d much rather have a leader who gives a sane and measured response than one who shoots his mouth off to keep the party happy.

  • A Social Liberal 21st Aug '13 - 11:08pm

    Tony said

    “I am confused by this discussion. I can’t work out who is disagreeing with who (m if you want). Who does “Dave” want out of this party – me, Nick Thornsby, Hywel…?

    Who is Dave? Perhaps if people identified themselves things would make more sense.”

    In the interests of clarity – My name is Stephen Walpole and I am a Social Liberal. :o)

    Dave apparently wants you AND Nick Clegg out of the party, whereas I just want Clegg voted out as leader – preferably before the General Election.

  • A Social Liberal 21st Aug '13 - 11:16pm

    Dave

    I’m not sure you are a liberal if you don’t believe that it is equally valid to hold one view as another, but that is for another thread, perhaps on another forum. I don’t understand how you can draw the conclusion that a party elite (presumably Clegg) has engineered this debate, given how extremely damaging this is for him personally and the party as a whole.

    Could you please be blunt and tell us exactly who is engineering this debate and to what ends.

  • Whilst I agree we should consider these as distinct issues, they are closely related along with the recent closure of Lavabit (Snowden’s UK-based secure email provider) and Groklaw (a US-based website focusing on legal news of interest to IT tech’s), to the information disclosed by Edward Snowden.

  • “That the Guardian chose to destroy the computers instead of defending any legal action is not a matter for the state; it is probably a reflection primarily of the Guardian’s lack of confidence in their legal case (which may raise questions of the legislative regime).”

    Not really. Confronted with a choice of legal action and symbolic destruction of property that wouldn’t impede their ability to continue their (hugely valuable) work, the Graun made the obvious choice.

    It *is* troubling. The attitude and actions of the individuals who mugged the Graun over this issue are extraordinary. I would dearly love to see heads roll.

  • Oh, and Tony Greaves: give the anonymity issue an effing rest. Please.

  • Social Liberal – ‘I don’t understand how you can draw the conclusion that a party elite (presumably Clegg) has engineered this debate, given how extremely damaging this is for him personally and the party as a whole’.

    Since when did Clegg care about what party members think about him or about the reputation of the party?

  • Aaron Trevena, 22nd Aug '13 - 7:18am

    “Confronted with a choice of legal action and symbolic destruction of property that wouldn’t impede their ability to continue their (hugely valuable) work, the Graun made the obvious choice.”

    This comment alone shows more understanding and intelligence than the partisan excuse making articles on LDV combined, Nick Thornsby shows (or feigns) a total lack of understanding of the core matters of this :

    * The government acted entirely outside of any legal or judicial system in how it made it’s demands and implemented them – the threat of expensive and possibly very damaging and restrictive legal action, possibly in a secret court where the paper couldn’t even see the evidence or challenge witnesses is a substantial one that it had no practical choice to avoid, regardless of the merits of it’s case.

    * The destruction of the disks was entirely symbolic and had no practical security benefits, to claim otherwise is to show a complete ignorance of technology, communications and journalism – the only realistic and practical aim could have been to intimidate journalists, which is abhorant in the extreme

    * The government abused anti-terror legislation (as seems to be the norm) to intimidate a journalist, and attempt to restrict whistleblowing – Miranda was meeting a film maker and journalists, not terrorists – neither is going to publish or distribute anything that would endanger agents on the ground or aid terrorists, to claim otherwise is dishonest.

    The two issues should be treated together, they’re part of a campaign by US and UK governments to stop whistleblowers exposing illegal and illiberal mass surveilance and the misues of that surveilance, as well as the coverups to avoid accountability – this is just one more attempt covering up the problems rather than addressing them

  • Aaron Trevena, 22nd Aug '13 - 7:24am

    Why do we have 2 partisan spin/opinion pieces making excuses for Clegg on LDV but none making the obvious case against extra-judicial actions by civil servants against newspapers and this campaign attempting to quosh any further whistleblowing regarding US and UK’s illegal and abused mass surveilance?

    Is LDV just a party mouthpiece to cheerlead the leadership when the grass roots are revolting? That certainly seems the case since I left the party – the remaining activists here becoming increasingly defensive of dodgy leadership and bad decisions rather than actually introspective about the problems of poor/weak leadership and bad judgement

  • Paul in Twickenham 22nd Aug '13 - 7:43am

    It could be a simple case of Mr. Clegg behaving like a back-covering middle manager: “there are multiple copies of this data in various jurisdictions around the world, but provided that there aren’t any copies in the UK then I can’t get blamed for any leak”. Of course as various people note, we are in danger of losing sight of the message from these disclosures: we are all the enemy within.

  • Paul in Twickenham 22nd Aug '13 - 8:22am

    Techie alert… how long before it becomes a criminal offence to encrypt the payload of an email with PGP or other mil spec crypto algorithm? If I now send an email from my gmail account that is encoded with PGP will GCHQ flag it and put my name in ze book?

  • “If I now send an email from my gmail account that is encoded with PGP will GCHQ flag it and put my name in ze book?”

    Do you think your name isn’t already in the book after those comments you’ve just posted? See you in the interrogation room.

  • Surely the important question is about the Liberal Democrat position on the 9 hour detention of Miranda at Heathrow as it clearly represents an attack on an individual’s civil rights . The farcical destruction of computers is less to the point, though there are important questions about the rights of journalists.

    P.S. Tony has every right to question anonymity, just as he has to give more weight to named contributors.

  • Nick T Nick Thornsby 22nd Aug '13 - 3:20pm

    Aaron –

    Our guidelines for contributors are here if you would like to write a piece https://www.libdemvoice.org/contribute-to-liberal-democrat-voice

  • Clear Thinker 22nd Aug '13 - 3:48pm

    Funny that the Guardian should find it acceptable to use data that they admit has been stolen from a state, while at the same time complaining bitterly that a state is stealing data from them! http://www.theguardian.com/world/2013/aug/22/david-miranda-court-victory-data-police

  • Tony Greaves 22nd Aug '13 - 5:14pm

    Leaked. If all material leaked to newspapers was regarded as stolen and subject to criminal proceedings for theft, investigative journalism would be dead. Anyway neither Greenwald, Miranda nor the Guardian stole any of this stuff.

    “Oh, and Tony Greaves: give the anonymity issue an effing rest. Please.”

    No I will not. I think it is a disgrace that people on here who claim to be Liberal Democrat members (and some of whom would seem to be holding positions in or around the party from what they write) do so and refuse to tell us who they are.

    I distinguish between pseudonyms and refusal to disclose identity. People can use what names they like as long as they are honest abou who they are. But the likes of “Dave” and “Clear Thinker” seem to be another matter. Of course they can always come clean and join in an honest and open debate.

    Tony

  • Clear Thinker 22nd Aug '13 - 5:42pm

    Ok, leaked. If Tony thinks its ok to use emotive words like disgrace, then it ought to be ok for me to do so too. I think it’s a disgrace that a peer should witch hunt in this way. Names carry no real information. Positions in the party do not affect the validity or otherwise of a point of view.

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