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The Miranda mess

August 19, 2013, at 1:28 AM

My gut reaction to the news that Glenn Greenwald's partner was detained by U.K. authorities for 9 hours was appropriately tribal. Greenwald is doing journalism these days, and harassing his spouse seemed to me stupid, unnecessary, and counter-productive. As I tweeted out my frustrations Sunday afternoon, more facts came in, and I changed my mind about half the story.

First, the U.S. government had reason to believe that David Michael Miranda was carrying classified documents, information that was stolen from the U.S. government by Edward Snowden.

He had spent the previous week in Berlin visiting Laura Poitras, a documentary filmmaker who has also been helping to disseminate Mr. Snowden's leaks, to assist Mr. Greenwald. The Guardian had paid for the trip, Mr. Greenwald said, and Mr. Miranda was on his way home to Rio de Janeiro.

Mr. Miranda was in Berlin to deliver documents related to Mr. Greenwald's investigation into government surveillance to Ms. Poitras, Mr. Greenwald said. Ms. Poitras, in turn, gave Mr. Miranda different documents to pass to Mr. Greenwald. Those documents, which were stored on encrypted thumb drives, were confiscated by airport security, Mr. Greenwald said. All of the documents came from the trove of materials provided to the two journalists by Mr. Snowden. The British authorities seized all of his electronic media — including video games, DVDs and data storage devices — and did not return them, Mr. Greenwald said. [New York Times]

Indisputably, the U.S. government is within its rights, both morally and practically, to take reasonable steps to protect classified information. The same goes for the government of the U.K. The U.S. government is also within its rights to investigate how Edward Snowden procured the documents he took, and yes, the Justice Department may appropriately attempted to establish the chain of custody of those documents. Snowden has revealed classified information about how the U.S. collects intelligence on foreign governments, including the identity of specific targets in China.

"Because: journalism" is not a sufficient response. I don't like how the Guardian put Miranda on its payroll, turning him into a courier of sorts and conferring on him the patina of the legal and traditional protections afforded to journalists. That's sloppy tradecraft and it's cruel to Miranda. Doing journalism makes you a journalist. As Joshua Foust points out, the transitive property does not apply. (I am not a corporate strategy consultant, and I would not be one if my spouse's company suddenly paid for me to fly stolen documents to my husband somewhere.)

Greenwald is doing real journalism. If extra protections are afforded, they are afforded to him. If extra scrutiny is warranted, he should get it. I know the Snowden case is a boundary case, that it is of an echelon that other leak cases are not and that there are real first amendment equities involved. I also know that the government takes leaks of this magnitude — and considers the totality of what's been leaked and what precedents it sets, not just the stuff we like (the U.S. stuff), but everything — terribly seriously. As all governments do, and have done, and will do. A separation between spouse and source is a foundational principle of how reporters approach complicated stories involving secrets and classified information. IF you do choose to involve your spouse, or you and your spouse work together, then you cannot reasonably complain that your partner was harassed for no reason whatsoever. Decisions have consequences.

But: A nine-hour detention based on a sketchy counter-terrorism statute is absurd. It would be easy enough to detain Miranda, explain why, be polite, confiscate his electronics, and then let him go. That should take less than an hour. And in this case, with the world watching, a velvet glove approach is called before because public opinion about the Snowden secrecy breach absolutely matters (whether it should or not) and will influence the disposition of his case and the precedents that are set.

The harassment that Poitras is subjected to every time she tries to cross a border is also ridiculous and a violation of her first amendment rights. She seems to have been watch-listed erroneously and the powers that be refuse to clear her, even though there is no evidence that she ever did anything outside the orbit of documentary journalism. THAT is a real scandal.

Correction: an early version of this post misstated the given name for Glenn Greenwald's partner. He is David Michael Miranda, not Michael Miranda.

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