UK Court: David Miranda Detention Legal Under Terrorism Law

[msanthrope]

42. Here you go...

To the jury--no copyright issue, as this is a public document.

55. Mr Greenwald’s witness statement of 23 October 2013 contains a similar theme at paragraph 9:
“I believe the evidence will show that the defendants were well aware that the claimant’s possession [sc. of the material seized] was in connection with journalism, not terrorism.”

Mr Greenwald’s account of the practice of “responsible journalism” has a didactic quality:

“31. It is my view that there will be times when the publication of sensitive material, even national security material, is appropriate, provided the journalist and those working with him or her take great care and act responsibly.

32. But not to publish material simply because a government official has said such publication may be damaging to national security is antithetical to the most important traditions of responsible journalism. That approach is also deeply unhealthy for any democracy. It would have prevented some of the most important information in world current affairs ever coming to light. Publication of information contrary to the wishes of a government is, at times, both the role and the duty of the ‘Fourth Estate’. The key is not for journalists to simply defer to the government view, but to act as responsibly and carefully as they can to determine if and when it is in the public interest to publish sensitive material. That is what we have done.

33. From my experience I can indicate that there are many ingredients to the sensible reporting of very sensitive information. They include, but are not limited to, the following:
(1)
If possible, one should seek to use the skills and judgment of highly experienced journalists and legal experts. This is the most appropriate and safest way to decide whether to publish information and how much of it to disclose. That collective experience enables a careful judgment of both the public interest and any risks or dangers that may arise on publication.
(2)
Experienced editors and reporters are able to consider what, if anything, may be published without endangering innocent life. They cannot always, of course, do so with complete perfection. But the history of investigative journalism leaves no doubt that such judgments can be, and almost always are, made with great responsibility.
(3)
Editors and other journalists not only have experience, but they also have established methods through which to communicate with government officials in relation to publication. These can be both formal and informal. These procedures enable journalists to determine which stories may be sensitive because they pose a real danger to persons if there is publication; and which stories are sensitive, awkward, embarrassing for the government, or which the government feels may be undesirable to be made public.”

The nearest Mr Greenwald gets to an engagement with the defendants’ evidence as to the actual or potential damaging effects of the dissemination of material seized from the claimant is at paragraphs 51 – 52:

“51. It is absurd to suggest that because the material, if it ever fell into the hands of terrorists could in theory be used for terrorist purposes, then there is a justification for using counterterrorist measures to take that material from responsible journalists publishing material through respected international media organisations. (original emphasis)
52. Nowhere in their evidence do the defendants’ witnesses positively indicate that any disclosure has actually threatened or endangered life or any specific operation. In my view, this is not surprising, given the care we took not to create such a risk.”

56. I am afraid I have found much of this evidence unhelpful. First, the claimant and Mr Greenwald both appear prepared to accuse the defendants of bad faith. The claimant at paragraphs 61(2) and 62, and Mr Greenwald at paragraph 9, suggest that the defendants deployed the Schedule 7 powers for what they – the defendants – believed was an improper purpose. It is true that the premise of these observations in their evidence is that the identification and neutralisation of the material which the claimant was carrying was not a permitted purpose; and I have held the contrary. But the sting (especially that of paragraph 61(2) of the claimant’s statement) is that the defendants did not believe that the claimant’s possession of the material presented any real danger to national security or risk of loss of life. I bear in mind the limits of evidence not cross-examined; but there is no perceptible foundation for such a suggestion.


57. Secondly, the evidence for the claimant simply does not engage with the defendants’ testimony as to the substance of the threat posed by the theft of the security material and its possession by the claimant. Mr Greenwald’s statement at paragraph 32 that “not to publish material simply because a government official has said such publication may be damaging to national security is antithetical to the most important traditions of responsible journalism” is true but trivial. Of course a bare, wholly unqualified assertion by government will not be enough. But that is not this case; the defendants’ evidence plainly goes much further.

58. Thirdly, Mr Greenwald’s account (paragraph 33) of the “many ingredients to the sensible reporting of very sensitive information” is insubstantial; or rather, mysterious
– the reader is left in the dark as to how it is that “highly experienced journalists and legal experts” (paragraph 33(1)) or “[e]xperienced editors and reporters” (33(2)) are able to know what may and what may not be published without endangering life or security. There may no doubt be obvious cases, where the information on its face is a gift to the terrorist. But in other instances the journalist may not understand the intrinsic significance of material in his hands; more particularly, the consequences of revealing this or that fact will depend upon knowledge of the whole “jigsaw” (a term used in the course of argument) of disparate pieces of intelligence, to which the classes of persons referred to by Mr Greenwald will not have access. At paragraph 26 of his first statement Mr Robbins says this:

“Indeed it is impossible for a journalist alone to form a proper judgment about what disclosure of protectively marked intelligence does or does not damage national security... The fragmentary nature of intelligence means that even a seemingly innocuous piece of information can provide important clues to individuals involved in extremism or terrorism.”

59. In the result, I conclude that nothing said for the claimant qualifies or puts in doubt the evidence of Mr Robbins and DS Goode as to the dangers inherent in the release (or further release) or dissemination of the material in the claimant’s possession. Neither the claimant nor Mr Greenwald is in a position to form an accurate judgment on the matter.

In other words, Glenn's didactic testimony sunk him..