Journalist, Terrorist or Counter-Terrorist? The Perils of Investigative Journalism Post-9/11
(2015) 2 Revue Internationale des Gouvernements Ouverts 227-256
30 Pages Posted: 25 Apr 2018
Date Written: 2015
Because of the pervasive ways in which terrorism is now perceived as a primary threat to state security, many states have adopted broad legal definitions of ‘terrorism’ and, upon that basis, have enacted correspondingly broad policing powers and criminal offences. As a dramatic instance of how these approaches, which affect leading Western jurisdictions such as the US, UK, Australia and Canada, this paper will focus on the paradigm case of David Miranda. In August 2013, Miranda was transporting computer materials (including files from security agencies) supplied by Edward Snowden, a former contractor with the US National Security Agency, to journalist Glenn Greenwald to assist ongoing disclosures in The Guardian and other publications. The materials were seized during an examination and detention of Miranda while he was transiting through Heathrow Airport. The journalists viewed their mission as one of disclosure in the public interest of a vast web of governmental illegal surveillance programmes. However, the UK Security Service (MI5) contended that Miranda was concerned in ‘terrorism’ (as defined in the UK Terrorism Act 2000, section 1) because his mission sought to influence the government by promoting a political or ideological cause. The allegation was that disclosure of the data to a hostile state (Russia) or to terrorists might imperil the identities of secret agents or the methods used for electronic surveillance of terrorists. Thus, the material was placed in the realms of terrorism (as well as official secrecy). The formulation of ‘terrorism’ in the mind of the examining officer did not require any specific offence to be formulated, nor must mens rea (beyond the ‘design’ and ‘purpose’ detectable from the mission) be established on the part of the traveller since there could be interest either in material being transported or in the traveller. On these grounds, Miranda was held under Schedule 7 powers (relating to border stops and searches), and the materials were seized. Similar arguments were used to persuade the editor of The Guardian to destroy other materials held in the newspaper offices. In a subsequent court review, Miranda v Secretary of State for the Home Department  EWHC 225 (now on appeal), the meaning of who is a ‘terrorist’ and whether the journalistic activity being pursued by Miranda, Greenwald and others should be excluded from that depiction was explored. This paper seeks to reflect upon the complex linkages between freedom of information activities and the label of ‘terrorism’ which is becoming a primary threat to investigative journalism in the contemporary world. It will require reflection upon the conceptual nature of terrorism, journalism, and freedom of information.
Keywords: Terrorism, port stop, journalism privileges, national security
JEL Classification: K10, K14, K33, K19, K30, K33, K42, N40
Suggested Citation: Suggested Citation