Theresa May, David Miranda and the Guardian Hard Drives

If you haven't heard about Edward Snowden, David Miranda and the Guardian hard drives then you mustn't have been paying much attention to the news this summer.

Just to recap:

Edward Snowden is the American whistleblower that has released lots of information about the massive scale of secret surveillance by the British (GCHQ) and American (NSA) secret services. Some of the things he has revealed include:

• The NSA  have been using a programme called Prism to steal the private communication data of millions of people across the World.
• The NSA have been spying on American citizens, in breech of their constitutional rights.
• The NSA have distributed stolen private information to hundreds of thousands of private security sub-contractors.
• The NSA have compelled companies such as Google, Yahoo, Microsoft, Skype, Apple and Facebook to create backdoor access to the private information of their users.
• The NSA directly spied on 38 foreign embassies, as well as several diplomatic missions to the United Nations.
• The NSA have provided GCHQ with access to Prism.
• GCHQ have been spying on the private communications of millions of people across the World.
  GCHQ have been spying on British citizens.
• GCHQ steals data even more invasively than the NSA do.
• GCHQ distribute their stolen private data to the NSA, who then distribute it to their network of hundreds of thousands of private sector sub-contractors.
• GCHQ spied on foreign politicians during the G20 summit.
• The NSA paid GCHQ £100 million and were given operational influence over British intelligence work.

David Miranda is the partner of the Guardian writer Glen Greenwald, who is the lead journalist on the Edward Snowden story. Miranda was detained at Heathrow Airport by the British authorities under anti-terrorism legislation. He was kept in custody for the maximum permissible time of 9 hours (most people detained under section 7 of the Terrorism Act are detained for less than an hour). He than had his personal property confiscated.

The Guardian hard drives were the ones that were destroyed as a result of David Cameron instructing Cabinet Secretary Jeremy Heywood to ensure that the Guardian copies of the documents leaked by Edward Snowden were either handed over to the British government, or destroyed. The Guardian editor Alan Rusbridger chose to destroy the drives rather than hand them over to David Cameron.

There is clearly plenty of material here for sufficient chapters to fill a book. Chapters could include: The terrifying scale of the surveillance operations; the impact on international relations; the distribution of stolen private data to hundreds of thousands of private sector operatives, and the likelihood that some of this stolen data has been used corruptly; the American operational influence over British secret services; the constitutional implications of mass surveillance in America; the way the UK surveillance operations have grown through function creep, rather than through due parliamentary process; William Hague's fascistic "nothing to hide, nothing to fear defence"; the collective punishment of family members; the misuse of anti-terrorism legislation; and the direct curtailment of press freedom by the Prime Minister of the United Kingdom.

The aspect I am going to concentrate on for the rest of this article is the bizarrely contradictory "operational independence" justifications from the United Kingdom government.

After it was first revealed that David Cameron and Theresa May were both aware of the detention of the journalist David Miranda under anti-terrorism legislation, the government trotted out the age-old, "we don't comment on individual cases" / "it's an operational matter" lines.

The Tories were forced to revise their "no further comment" stance after the former Lord Chancellor Charles Falconer condemned the detention as misuse of anti-terrorism legislation, saying "I am very clear that this does not apply, either on its terms or in its spirit, to Mr Miranda" and the former Tory prisons minister Crispin Blunt said "Using terrorism powers for something that doesn't appear to be a terrorism issue brings the whole remit of the laws passed by parliament to address terrorism into disrepute".

Even before we begin comparing it with other things, the justification the Tories came up with is utterly absurd. Theresa May's justification for not intervening was twofold. Firstly, she openly approved of the detention of a journalist under anti-terrorism legislation and the confiscation of his personal items, and overtly praised the police for doing it. Secondly, she stated that the police have absolute "operational independence", which is claim that politicians are somehow powerless to intervene in the operation of the legal system. This "operational independence" line was later reiterated by David Cameron's office, before Theresa May went one step further to imply that anyone raising doubts about the tactic of using anti-terrorism legislation to intimidate journalists, is guilty of condoning terrorism.

The "condoning terrorism" line is simply a reiteration of the George W. Bush "you either support us or you support the terrorists" stance and has been rightfully torn to shreds. The former Director of Public Prosecutions Ken MacDonald's described Theresa May's "with us or against us stance" as "ugly and unhelpful" before going on to say that "people who are concerned about these issues are not condoning terrorism. They are asking a perfectly legitimate question, which is: are we striking the balance in the right place between security and liberty?"

In my view the "operational independence" line is just as bad as Theresa May's blatant smear tactics. The thing that is so obviously wrong with the "operational independence" stance is that it creates a "get out of jail free" card for politicians. If this stance is accepted, it means that politicians are exempted from blame, no matter how corruptly, immorally or unlawfully they know that the police of members of the criminal justice system have acted, or how little they did to stop it once they found out.

The claim of absolute operational independence is farcical. Imagine politicians knew about a bunch of corrupt undercover police officers stealing the identities of dead babies, infiltrating protest groups, acting as agent provocateurs, forming sexual relationships and fathering children, before disappearing completely leaving several women with no financial maintenance. Imagine that politicians knew all about a vast police cover-up to hide their culpability in the deaths of 96 innocent football supporters through the mass falsification of statements and a smear campaign against the deceased fans.

OK these things are not at all hard to imagine, they actually happened, and it seems extremely unlikely that no politicians knew about these operations as they were happening.

Let's try considering something even more extreme than the theft of dead baby identities, rape by the state, mass falsification of disaster reports and smear campaigns against the dead:

Imagine that the Argentine dictator Jorge Rafael Videla had been allowed to use the "absolute operational independence" defence to explain away his involvement in the policy of kidnapping pregnant left-wing women, holding them as political prisoners until they gave birth, extrajudicially executing the mothers, then handing the babies over to supporters of his military junta. Even if the prosecution in his trial for crimes against humanity had been able to show that he knew all about, and openly approved of these barbaric practices, he could simply claim that he was "powerless to intervene" due to the sanctity of the "operational independence" of the Argentine Naval taskforce that oversaw these practices. Perhaps this is how Theresa May would like absolute operational independence to work? No matter how despicable the actions of the state, and no matter how much the political class knew about it, or approved of it, in her mind "operational independence" exempts them from all blame.

This "you can't blame us because we were powerless to intervene" stance from Theresa May and David Cameron contrasts quite rudely with David Cameron's words about the the Barclays Chief Executive Bob Diamond and the Libor rigging scandal. Here's what Cameron said back in 2012: "people have to take responsibility for the actions and show how they're going to be accountable for these actions" and that "it is very important that goes all the way to the top of the organisation". Note how these sentiments are absolutely incompatible with the "we're powerless to intervene because of operational independence" narrative.

The "absolute operational independence" line is absolutely ludicrous because it can quite clearly be used to excuse politician's knowledge of, and refusal to act against corruption, criminality and immorality. It clearly represents a complete abnegation of moral responsibility by the government.

To his credit, the Tory MP David Davis picked up on this attempt to abnegate moral responsibility when he told the BBC that "[the government] didn't direct it, nobody is suggesting they directed it. But they approved it by implication. If the home secretary is told this is going to happen and she doesn't intervene then she is approving it". He is absolutely right. If the home secretary is fully aware that the police are brazenly misusing anti-terrorism legislation in order to intimidate journalists, she has a moral obligation to, at the very least raise some concerns about it. Instead, she did nothing, and then paraded around in front of the press openly praising the police for their action and smearing anyone that dared to ask the questions that she should have been asking herself.

The really damning evidence comes when this "powerless to intervene in legal matters" argument is contrasted with the enforced destruction of the Guardian hard drives. An attack on press freedom by the government so egregious it even drew condemnation from the Americans!

The idea that government ministers are absolutely powerless to intervene in legal matters (even if they suspect that the police are behaving unlawfully) is absolutely blown out of the water by the fact that the Prime Minister of the United Kingdom considers himself to have the powers to gave a direct ultimatum to a newspaper to either hand over their source material, or to destroy it. If Cameron's attack on press freedom is not an absolutely clear cut example direct of government intervention in legal matters, I'm not sure what would be.

It is frankly ludicrous that the Tories believe that anyone would accept the idea that the government will intervene to bully a newspaper into destroying their source material, yet later claim to be utterly powerless to ever intervene in legal matters, no matter how unlawfully they believe the police might be behaving. 

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