The detention of a journalist under something called the Terrorism Act should raise eyebrows whatever the situation. It does not matter whether David Miranda was travelling as an ordinary man, a journalist, or a journalist’s ‘data mule’ – not unless you think that journalism is or can ever be ‘terrorism’. His nine hours at Heathrow are evidence of growing government antipathy towards journalism in the public interest.
Nor is he the only example. Last week we wrote about a series of incidents in which US authorities spied on or prosecuted journalists who wrote about leaks. We told how the US government secretly subpoenaed the phone records of AP reporters; how they spied on a Fox News journalist and labelled him a “co-conspirator” for publishing leaked foreign policy reports. Since then, Glenn Greenwald’s colleague Laura Poitras has claimed that she’s been stopped on the US border around 40 times since 2006, and it has also emerged that the FBI put a mole inside Wikileaks, asking him to keep watch on Guardian staff reporter James Ball. In the UK, meanwhile, there is a long history of attempts by the authorities to obtain prior restraint on inconvenient news – as Justin Schlosberg laid out last week on this site.
All this sets a dangerous precedent for investigative journalism and for the media’s ability to hold power to account. From the MPs’ expenses scandal to the Pentagon Papers, big stories often involve journalists handling illegal information, and especially information the government does not wish to release. It is increasingly these journalists who are targeted by the Anglo-American war on whistleblowers.
But there are more than a few people who think we have no right to complain because we supported independent regulation of the press. Take Brendan O’Neill, writing in his own Spiked Magazine:
“The newspaper editors, politicians and concerned tweeters now getting het up about the state’s interference in journalistic activity, about what they call the state’s ‘war on journalism’, are the very same people – the very same – who over the past two years cheered the state harassment of tabloid journalists; watched approvingly as tabloid journalists were arrested; turned a blind eye when tabloid journalists’ effects were rifled through by the police; said nothing about the placing of tabloid journalists on limbo-like, profession-destroying bail for months on end; said ‘Well, what do you expect?’ when material garnered by tabloid journalists through illegal methods was confiscated; applauded when tabloid journalists were imprisoned for the apparently terrible crime of listening in on the conversations of our hereditary rulers.”
While O’Neill is perhaps the most strident in this view, he is not alone. This week’s Private Eye carries a ‘Number Crunching’ box contrasting the one person arrested at Heathrow with 120 arrested after the “Guardian phone-hacking revelations.” A column in the Independent by Claire Fox also referenced the Fleet Street arrests, whose “plight has not been taken up by campaigning journalists of the Greenwald variety because – well – they are the wrong kind of journalists.” Various tweets and snippets across the media sphere this week echoed the same claim: that supporters of the Leveson reforms and critics of phone hacking are somehow hypocritical in condemning Miranda’s arrest.
There’s no question that the aggressive behaviour of British police should be called into question. In February 2012 we called the growing trend of the ‘dawn raid’ a “deliberately intimidating” and “terrifying” tactic – though we also criticised tabloids for cheering it on when it’s used against others. It is hard to take seriously the claim that the Guardian has granted more “awesome power” to the police in the past two years than has the Sun in its long history of uncritical support for the police. Moreover, the dawn raid is a tactic used against both ‘sides’ of the media reform debate. On the day before his Leveson testimony, police entered the home of Alec Owens, the former head of Operation Motorman who accused the Information Commissioner’s Office of failing to properly investigate press abuses. There was no seeming justification for the raid; “they have come on a fishing expedition to find out what I’m going to say,” Owens told the Independent.
More importantly, Miranda’s detention is a very different affair from the phone hacking arrests. For one thing, it may well have been illegal. Lord Falconer, the former Lord Chancellor who helped introduce the bill to the House of Lord, told the Guardian that the law’s criteria “does not apply, either on its terms or in its spirit, to Mr Miranda.” This confirmed what lawyer David Allen Green had proposed in his own legal analysis some days earlier: that even the bizarre and repressive ability to detain someone merely in order to “assess” their connection to terrorism does extend to the Official Secrets Act or any other offence.
Sure enough, there are indications that Miranda’s detention was intended primarily to intimidate and harass the journalists involved. US government sources told Reuters that “one of the main purposes” was to “send a message to recipients of Snowden’s materials”. Meanwhile, “senior figures” in the UK stressed to Mail deputy political editor Tim Shipman that, hey, they could have just arrested the Guardian’s journalists or raided his offices when the story first break. At very least, the use of the Terrorism Act in this case was highly politicised.
By contrast, Rebekah Brooks, Neville Thurlbeck and Andy Coulson were arrested, bailed, and will be tried under ordinary criminal law – the kind with charges and the protections. They were even (luxury of luxuries) charged with laws which they are actually alleged to have broken. The use of ‘dawn raids’ may have been designed to drown out the rising murmur of police complicity in the case, but that does not change the underlying case. The difference between this and Miranda could not be more clear.
There is another argument beyond the use of the law in this case. It is an argument about what public interest journalism looks like and why many of the titles who have campaigned so vociferously against Leveson’s recommendations have so often fall short of it. It is about who really decides “the public interest” and whether it is really just an excuse to persecute “the wrong kind” of journalists. We will examine that argument in our next article. Still, in case there has been any confusion, let us make it very clear: the Media Reform Coalition no more supports the extralegal detention of journalists or journalists’ aides for the purpose of sending punitive ‘messages’ than it does the extension of the franchise to hedgehogs or the abolition of marmite.