Much has already been written about the implications of R (Miranda) v Secretary of State for the Home Department for Schedule 7 Terrorism Act 2007. However, leaving that to one side, I want to reflect on the questions about secrecy that Miranda touches on.
Although some have criticised the judgment for equating investigative journalism with terrorism, Laws LJ held that “There is no suggestion that media reporting on terrorism ought per se to be considered equivalent to assisting terrorists”. However, some disclosures made by journalists might have the effect of aiding or assisting terrorists in evading counter-terrorism. That may be an unpopular proposition but it is likely correct, and it raises important questions about where the legitimate lines between secrecy and transparency lie and who gets to decide when they have been crossed.
Secrecy and counter-terrorism go hand in hand. Complete transparency (i.e. disclosure of all activities to the public at large) when it comes to counter-terrorism is neither practicable nor desirable from a security perspective. That is not to say that absolute secrecy is necessary or desirable either. Instead, cases like Miranda should cause us to think about secrecy—and, as a result, transparency—as a layered phenomenon.
Broadly drawn and simplistically described, there are at least four layers of secrecy/transparency that we might think about in the counter-terrorist context.
- Public public: elements of counter-terrorism that are publicly known and deliberated upon, such as legislative frameworks.
- Public political: elements of counter-terrorism that are not subject to full public disclosure but which are disclosed to the public through the proxy of political actors. Here there is public scrutiny through representative politics, but not through full public deliberation.
- Private political: there is disclosure to some political actors but that disclosure is not subjected to political scrutiny within traditional parliamentary structures. This might include private security briefings and disclosures to relevant ministers.
- Agency private: where disclosures happen within the relevant agency or agencies and there is limited or no political disclosure.
In many cases all four of these levels coexist. However, in other cases—such as in relation to the disclosures flowing from Edward Snowden’s whistle blowing—there is little or no ‘public public’ or ‘political public’ information. Instead the existence and detail of the counter-terrorist activity in question are almost completely secret. This poses serious democratic and legitimacy concerns that whistleblowers and journalists try to manage.
In essence, the question that Miranda raises is whether journalistic expression that attempts to manage these secrecy concerns through disclosure ought to be protected to the extent of being exempted from laws and structures that are designed to protect security. Laws LJ was obviously sceptical. At paragraph 58 he wrote, of Greenwald’s account of how disclosure decisions are made:
…the reader is left in the dark as to how it is that “highly experienced journalists and legal experts” … are able to know what may and what may not be published without endangering life or security… [T]he 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 [journalists] will not have access….
This passage raises legitimate concerns, but it also implicitly emphasises the importance that we ought to attach to constructing appropriate structures for the management of secrecy. If it is true that journalists—even with legal advice—cannot fully appreciate the security implications of disclosing secret counter-terrorist operations and information, then at the very least we should be able to expect that we would have transparency under headings 2, 3 and 4 above (i.e. public political, private political and agency private) in respect of all security activities.
Journalism—which creates ‘public public’ transparency—may not always have the capabilities to make the kinds of security judgement necessary to assess whether a particular piece of information ought to be in the public domain, but neither ought we allow security agencies to monopolise both the information that we use to assess threats and the decisions as to disclosure.