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Column: Miranda’s Detention Is a Warning

Washington

Over the past decade, the United States has stretched the definition of “terrorism” to justify or disguise expansions of surveillance and war. In 2003, President George W. Bush declared that overthrowing Arab dictators was part of the “war on terror.” From 2004 to 2007, the Bush administration persuaded the Foreign Intelligence Surveillance Court to define massive, overwhelmingly innocent clusters of communications data as terrorism-related “facilities” subject to authorized U.S. surveillance. In 2009, U.S. officials labeled the Fort Hood shooter a “terrorist” for killing fellow U.S. military personnel. In 2010, the CIA designated the fatal bombing of its drone-war operators in Afghanistan as a “terrorist attack.”

Now the United Kingdom has pushed the definition one step further. It detained David Miranda, the domestic partner of Guardian journalist Glenn Greenwald, for nine hours at Heathrow Airport — threatening him, interrogating him, and confiscating his laptop and other storage devices — under an anti-terrorism law.

According to the U.K., this statute authorizes detention and confiscation because Miranda’s documents expose sweeping government surveillance methods and therefore, if released, might help terrorists evade that surveillance. Counterterrorism now justifies the use of force to prevent the exposure of domestic spying.

Miranda, who was passing through Heathrow on his way from Germany to Brazil, was apparently ferrying documents from one associate of Edward Snowden — filmmaker Laura Poitras — to another: Greenwald. According to Scotland Yard, Miranda was detained on Aug. 18 “under Schedule 7 of the Terrorism Act 2000.” That provision allows airport officers to question and search the belongings of any traveler “for the purpose of determining whether he appears to be a person falling within section 40(1)(b)” of the statute — i.e., a terrorist. Section 1 of the law, as amended in 2006 and 2009, defines terrorism as the use or threat of violent or life-endangering action “designed to influence the government or an international governmental organization or to intimidate the public or a section of the public.” This use or threat must be “for the purpose of advancing a political, religious, racial, or ideological cause.”

Call Miranda, Greenwald, Poitras and Snowden whatever you like. Call them reckless leakers, anarchist zealots, enemies of the state. One thing you certainly can’t call them, under British or American legal definitions, is terrorists.

They’re trying to expose, through the exposure of state secrets, what they regard as violations of civil liberties. They aren’t trying to intimidate the public or advance a religious or racial cause. Their politics and ideology are purely libertarian. If that’s terrorism, then anyone who opposes the extension of state power is a terrorist.

The British government and police haven’t labeled Miranda a terrorist. Instead, they’ve claimed that the Terrorism Act authorizes them to detain him, interrogate him, and search and confiscate his belongings because the files he carried, if exposed, would “help” terrorists. On Aug. 20, the U.K. Home Office, which manages immigration, drugs, crime and counterterrorism, declared that police were entitled to act if they “believe that an individual is in possession of highly sensitive stolen information that would help terrorism.” A few hours later, Home Secretary Theresa May repeated that rationale: “If the police believe somebody has in their possession highly sensitive, stolen information which could help terrorists, which could lead to a loss of lives, then it is right that the police act.”

Notice May’s substitution of a single, significant letter.

Under her interpretation of the Terrorism Act, police can detain you and confiscate your belongings if they think your information could (not just would) “help terrorists.” The fact that your information, from a civil libertarian standpoint, would help everyone is beside the point. You’re forbidden to disclose it — and police are authorized to detain you and confiscate it — because some of the people it could help are terrorists. They might learn how to circumvent surveillance, thereby leading eventually to a loss of life.

May repeated this formula five more times in a BBC interview on Aug. 21. She used it to justify not just Miranda’s detention but also the government’s enforced destruction of a Guardian laptop containing similar files.

The issue at stake, she explained, was “information that could be of benefit to terrorists.” Sir Malcolm Rifkind, the chairman of the U.K.’s Intelligence and Security Committee, elaborated:

“The documents which Snowden stole from the National Security Agency are documents, some of which deal with how the intelligence agencies get access to terrorist information through interception of mail or phone messages and so forth. That is something potentially relevant to terrorism. . . . I’m not saying that every leak of every bit of information held by an intelligence agency will help terrorists. . . . What I am saying is that neither Mr. Snowden nor the editor of the Guardian nor the editor or any other newspaper is in a position to necessarily judge whether the release of top secret information may have a significant relevance in the battle against terrorism. . . . That’s simply a question of your inability to judge if you are a newspaper editor or a journalist, as opposed to somebody involved in the intelligence work . . .”

In other words, only intelligence agencies can decide which secrets justify the use of the Terrorism Act’s detention and confiscation provisions.

Thursday, Scotland Yard announced that its initial scan of Miranda’s devices “has identified highly sensitive material, the disclosure of which could put lives at risk. As a result the Counter Terrorism Command (SO15) has today begun a criminal investigation.” The U.K.’s High Court ruled that the government could inspect, copy and distribute Miranda’s files “for the purpose of the protection of national security” as well as for “investigating whether Mr. Miranda is a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism.”

Most political movements that begin with good grounds and good intentions eventually overextend and discredit themselves. It happened to socialism. It happened to anti-communism. At various times, it has happened to liberalism, conservatism, and libertarianism. Now it’s happening to anti-terrorism. The last people to recognize the abuse and destruction are the abusers themselves. Just ask David Miranda.

William Saletan covers science, technology and politics for Slate.