Investigative Journalism and Counter Terrorism Laws

Since terrorism is now perceived as a primary and pervasive threat to state security, many states have adopted broad legal definitions of “terrorism” and, upon that basis, have enacted correspondingly expansive policing powers and criminal offences. As a dramatic instance of how these approaches, which affect major Western jurisdictions such as the U.S. and U.K., 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 U.S. 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 ethical disclosure in the public interest of a vast web of governmental surveillance programmes. However, the U.K. Security Service (MI5) contended that Miranda was involved in ‘terrorism’ (as defined in the U.K. 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 fell into the realms of terrorism. On these grounds, Miranda was held under special detention powers relating to counter-terrorism at borders, and the materials were seized. Similar arguments were then 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, the meaning of who qualifies as 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 journalistic 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 and journalism in a setting of ethics, public policy, and law