by Luke Harding
The volume of communications traffic the companies opened up to the NSA was tremendous. Infrastructure controlled by three ‘corporate partners’, as the NSA referred to them, represented an estimated 81 per cent of international calls transiting through the United States. Close and secret partnership with telecoms is nothing new for the NSA: in fact, it is the way the NSA has operated since its inception. Those long-standing relationships, along with the patriotic sentiment of a nation wounded after 9/11, provided for a receptive audience from the firms. Two of the three ‘corporate partners’, for instance, contacted the NSA even before STELLAR WIND officially began and asked, ‘What can we do to help?’
The following two years saw at least three more telecommunications firms approached to provide support to STELLAR WIND – although strains were beginning to emerge. The demand for this additional data did not occur, thanks to a judge’s order. It was a unilateral request from the NSA, with nothing more official than a notice from Attorney General John Ashcroft – who periodically renewed the program – to back it up, and Ashcroft was no judge. One of the three firms provided merely ‘minimal’ support to the agency. Two others were even more hesitant. One, which the NSA wanted to provide it with email content, bucked the agency due to ‘corporate liability concerns’, according to an internal NSA draft history. Another wanted to bring in outside lawyers to review the legality of its compliance. The NSA, deeming the risk of exposure too great, withdrew the request.
There was unease within the Justice Department too, about the program’s legality. The deputy attorney general, James Comey, was reported to have refused to sign off renewals during his boss Ashcroft’s illness. Not only Hayden, the head of the NSA, but also President Bush himself were personally involved in a 2004 attempt to pressurise the New York Times to suppress a leak about the program. ‘The Bush administration actively misled us, claiming there was never a doubt that the wiretapping operations were legal,’ says Eric Lichtblau, one of the authors, along with Risen, of the subsequent exposé of the scandal in the newspaper.
In December 2005, the NSA’s worst fear eventually came true. ‘BUSH LETS US SPY ON CALLERS WITHOUT COURTS’ read the front-page headline in the New York Times. The story gave only a fraction of the picture. It focused on the warrantless NSA interception of Americans’ international phone calls and email traffic, without disclosing the bulk collection of the metadata that essentially provided the agency with a social network of everyone inside the US and their ties abroad.
While denouncing the Times, Bush publicly launched a vigorous defence of the program as one of the biggest post-9/11 intelligence successes. Even shrewder, Bush confirmed only the parts of STELLAR WIND that the Times had reported, and gave them a new, politically powerful name that would put its critics on the defensive: the Terrorist Surveillance Program.
As with nearly every element of Bush’s national security policies, the subsequent furore was largely partisan and predictable: Republicans fell over themselves to defend the warrantless surveillance as necessary to thwart terrorists; Democrats just as quickly denounced it as a constitutional atrocity.
In October 2001, Nancy Pelosi, the liberal Californian House minority leader and parliamentary tactician, had been the ranking Democrat on the House intelligence committee, and she attended Hayden’s initial briefings. Bush administration officials and allies, smelling hypocrisy and opportunism, accused Pelosi of abandoning a program she had safeguarded in secret.
Pelosi fought back. She declassified a letter she wrote to Hayden days after STELLAR WIND became operational, which expressed uneasiness: ‘Until I understand better the legal analysis regarding the sufficiency of the authority which underlies your decision on the appropriate way to proceed on this matter, I will continue to be concerned.’
Pelosi was not the only one personally affected by the revelations. Vito Potenza had a problem on his hands the moment the Times ran with the story. As the general counsel for the NSA, one of Potenza’s responsibilities was interacting with the telecoms and internet service providers, to reassure them that their co-operation was legal. But that was an easier arrangement to maintain in secret. Now that the media had run with the story, the telecoms worried about both their bottom lines and their legal exposure. But they also didn’t contemplate ending the arrangement with the NSA.
One of the service providers passed on a potential solution to Potenza. Don’t ask us to provide telephone metadata. Make us do it. ‘The provider preferred to be compelled to do so by a court order,’ the NSA’s internal history noted.
So during the early months of 2006, the Justice Department and NSA lawyers worked together to craft a secret legal authorisation for domestic telephone metadata collection that would withstand the scrutiny of the equally secret FISA court, now briefed on STELLAR WIND. The answer was the so-called ‘business records provision’ of the Patriot Act, its now-notorious section 215.
Under section 215, passed after 9/11 and already detested by civil libertarians, the government had the power to compel businesses to turn over items ‘relevant’ to an ‘ongoing’ terrorism investigation. Shoehorning bulk metadata collection into that statutory requirement was tricky. It was questionable whether all Americans’ phone records posed any relevance to any actual ongoing investigation. The metadata was more like a body of information that occurred prior to an investigation, creating the conditions for divining investigative threads.
Yet the newly briefed FISA court proved to be receptive. ‘There are reasonable grounds to believe that the tangible things sought are relevant to authorised threat investigations … being conducted by the FBI,’ wrote Judge Michael Howard of the FISA court on 24 May 2006, in a classified decision, granting the court orders the companies wanted.
Keith Alexander, the next director of the NSA, was to describe these relationships with telecoms and internet service providers during a contentious hearing of the House intelligence committee on 29 October 2013: ‘We’ve asked industry’s help. Asked? OK, more accurately, we have compelled industry to help us in this manner by court order.’
It would have been more accurate, perhaps, to say ‘industry’ compelled Alexander to compel industry by court order.
The administration then wrote itself more legal cover in the hotly contested FISA Amendments Act (FAA). The FAA legalised and blessed any communications interception between an American and a foreigner. The foreigner did not have to be a terrorist suspect: he merely had to be ‘reasonably’ suspected of having foreign intelligence value. Nor did he even have to be actually overseas: he merely had to be ‘reasonably’ suspected of being overseas during the time of interception. Approvals came from the FISA court in bulk, annually.
In one of the most important provisions of the bill, the FAA granted explicit legal immunity to any telecommunications firm that participated in the bulk surveillance. The immunity was both retroactive and prospective. Essentially, no private-sector partner of the NSA’s would ever face criminal charges or financial damages.
The FAA was passed in mid-2008, the thick of presidential election season. It was a tremendous success for the NSA. What had begun as a lawless secret, controlled entirely by the executive branch, had now won the explicit approval of Congress, many of whose members little understood its significance. There was now a new term in the NSA lexicon: ‘702’, a reference to the legal text of FISA that the FAA changed, which would now be a wellspring for much of the NSA’s overseas and ostensibly terrorism-related collection.
Civil libertarians rued a fight they bitterly contested and had now lost. Bulk collection of communications on a massive scale would follow, warned the ACLU, and some of it would inevitably be American, all without individual suspicion or a way to adequately challenge its occurrence. It sounded like the General Warrants issued by the British colonial authorities – the very unreasonable searches and seizures that had provoked the American Revolution and the constitution itself.
In the House of Representatives, where th
e FAA was passed by a 293–129 margin in June, the overwhelming majority of dissenting votes were Democrats. But the Democrats on the intelligence committee tended to vote for it. Among them were committee veteran Jane Harman and her predecessor, now the House speaker, Nancy Pelosi. It seemed she had overcome her earlier reservations.
In the Senate, the bill passed by a comfortable 69–28 margin. All 29 dissenters were Democrats. But what was notable were Democrats aligning with the NSA. One was Dianne Feinstein, who would become the intelligence committee chairwoman the following year. Another was Jay Rockefeller, who held the position at the time – and who had denounced the same surveillance activities when the Times exposed them.
A third was the liberal hope of the early 21st century, a first-term senator from Illinois and constitutional law professor. Barack Obama, in a 2007 stump speech for his nascent presidential campaign, had pledged, ‘No more illegal wiretapping of American citizens. No more National Security Letters to spy on American citizens who are not suspected of a crime. No more tracking citizens who do no more than protest a misguided war. No more ignoring the law when it is inconvenient.’
Obama, the Democratic nomination in sight, and from there the presidency, voted for the FAA on 9 July 2008.
With the passage of the FAA, political controversy over warrantless surveillance became marginal, the preoccupation of those already invested in one outcome or another. Periodically throughout the Obama administration, surveillance votes would occur – as with the renewal of the Patriot Act and the FAA itself – but relatively few paid attention. Obama paid no political price for any of the bulk surveillance activities he presided over.
One reason for that was that the FAA vote largely returned the veil of secrecy to the NSA’s bulk collection activities. While a few obsessives knew the name STELLAR WIND, there was no public proof that the NSA was secretly hoarding the phone metadata of every American. There was no public proof that the NSA had entered into sweeping arrangements with every significant internet service provider, under a program that was getting off the ground called PRISM.
There was, however, a warning. In 2011, in an interview with WIRED reporter Spencer Ackerman – who would soon become the Guardian’s national security editor – and in a floor speech shortly before a critical vote on the Patriot Act, Senator Ron Wyden, an Oregon Democrat who sat on the intelligence committee, obliquely said that the government had a secret interpretation of the Patriot Act that was so different from what the text of the law said that it amounted to a new law – one that Congress had not voted to approve.
‘We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,’ Wyden said. ‘When you’ve got that kind of a gap, you’re going to have a problem on your hands.’ If the American people saw the discrepancy, he added, they would be astonished – and horrified. But Wyden, sworn to protect classified information, refused to say exactly what he meant.
Despite all the suspicions and the arcane controversies, the developing facts about the country’s biggest and most intrusive domestic and international surveillance programs were thus kept from the American public in whose name they were being carried out. When Edward Snowden got on a plane for Hong Kong in 2013, the material he held on his laptops was highly explosive.
5
THE MAN IN THE ROOM
Mira Hotel, Nathan Road, Hong Kong
Tuesday 4 June 2013
MACASKILL: ‘What do you think is going to happen to you?’
SNOWDEN: ‘Nothing good.’
Ewen MacAskill was no stranger to Hong Kong. But during his trips to the then British colony in the early 1980s, his name had been ‘Yuan Mai’. This was the official Chinese byline he used while writing for the China Daily. Back then, the young MacAskill lived in Beijing. He was, in theory at least, a member of the Chinese communist party’s propaganda unit. In reality, he was on secondment from the respected Scotsman newspaper in Edinburgh. He had spotted an advert there for an English-speaking journalist.
Working for the China Daily was less stressful than it might have appeared, since all mention of politics was taboo. MacAskill’s role was to mentor Chinese journalists. The hope was they would produce a modern English-language newspaper. There were charming tales to be told along the way. As well as obligatory stories on grain production in Tibet, MacAskill interviewed the brother of China’s last emperor, and the first climber to reach the summit of Mount Everest from the Chinese face. He wrote about a Chinese nuclear physicist who later in life – maybe as repentance – designed playground rides for kids.
‘People were still wearing Mao suits and riding bikes,’ MacAskill recalls. It was an exotic world for a young Scot who had grown up in a tenement block in chilly Glasgow.
MacAskill had become one of the Guardian’s most respected journalists. Britain’s Fleet Street trade may have been notorious for phone hacking, blagging, subterfuge and other acts of petty treachery, but MacAskill was one of the straight guys. In a highly regarded career he had never done anything devious. He was one of few to whom Humbert Wolfe’s epigram didn’t apply:
One cannot hope to bribe or twist
Thank God! the British journalist.
But, seeing what the man will do
Unbribed, there’s no occasion to.
MacAskill’s integrity perhaps owed something to his Scots parents, who belonged to the Free Presbyterian Church. The small sectarian group took an uncompromising view on sin. Family summers in the Hebridean island of Harris, a diehard Calvinist refuge, reinforced the evangelical creed. A working-class boy in the late 1950s, MacAskill learned that Sundays were for church. Dancing, music and fornication were forbidden. Lying was, of course, wrong.
Aged 15, MacAskill discovered books. He became an atheist. He stopped going to church. (The breach came one Sunday when the minister devoted an entire sermon to the evils of long hair; MacAskill was the only hirsute teenager in the congregation. The Beatles were increasingly hairy; beards were flourishing.) He won a place at Glasgow University to study history. ‘It transformed my life,’ he says. There, he realised the students who had been privately educated were no brighter than he was; that Britain’s intractable postwar social divisions were more porous than he had thought.
After university, MacAskill joined the Glasgow Herald. He was a trainee. It was the 1970s. The period was one of old-school journalism, when the Herald’s reporters were kings, rather than its columnists, the stars of today’s popular media, and there was a culture of Big Drinking. Reporters not working on stories would go to Ross’s, a nearby bar down a dark, cobbled lane. If a story broke and you needed a reporter you went to the bar.
MacAskill thrived at the Herald but also had what the Germans call Fernweh, a longing to be far away. In 1978–9 he spent two years training journalists in remote Papua New Guinea. After China, he moved to the Scotsman, and then to London as the Scotsman’s political correspondent. In 1996 he applied for the same role at the Guardian. Ahead of his interview with Rusbridger, MacAskill was nervous; afterwards the editor told him: ‘That’s the worst interview I’ve heard in my life.’
Nevertheless he got it. MacAskill reported on Tony Blair’s 1997 UK election landslide victory and in 2000 became diplomatic editor, covering Iraq and the Israel–Palestine intifada. In 2007 he moved to Washington. At first his view of Obama was positive, ‘a pretty good president’. Latterly, the administration’s heavy-handed pursuit of journalists and their confidential sources disillusioned him. The relationship between the executive and the Fourth Estate was getting darker and more nasty, its battleground the control of digital information.
So Janine Gibson, the Guardian’s US editor, could certainly rely on MacAskill for imperturbable and honest advice. He now had a challenging assignment: to verify whether Greenwald’s mysterious ‘NSA whistleblower’ was the real deal. On Monday 3 June, he stayed ensconced in the W Hotel in Kowloon while his pair of freelance companions went off
to find their alleged intelligence source for the first time.
MacAskill whiled away the day taking the subway to Hong Kong Island, revisiting old haunts. It was hot and humid. Later that evening, Greenwald returned with his news – Snowden was plausible, if ridiculously young. He had agreed to meet MacAskill. They took a cab back to the Mira Hotel the next morning. Past its onyx entrance, they found Poitras in the lobby. She took them up to room 1014.
Inside 1014, MacAskill saw someone sitting on the bed. The young man was casually dressed in a white T-shirt, jeans and trainers. They shook hands, MacAskill saying: ‘Ewen MacAskill from the Guardian. Pleased to meet you.’ This was Snowden. His living conditions were cramped. There was a bed, and a bathroom; a small black suitcase lay on the floor. A large TV was on with the sound turned down. Through Snowden’s window you could see Kowloon Park; mums and dads were strolling with their kids across a flash of green; it was drizzling, the sky dull and overcast.
The remains of lunch were on the table. When he left Hawaii Snowden clearly hadn’t taken much with him. There were four laptops, with a hard case for the biggest of them. He had brought a single book, Angler: The Shadow Presidency of Dick Cheney, by the Washington Post’s Barton Gellman. It told the story of how Vice President Cheney secretly brought in ‘special programs’ in the wake of 9/11; the STELLAR WIND affair, part-exposed by the New York Times.
Chapter six, well-thumbed by Snowden, read: ‘The US government was sweeping in emails, faxes and telephone calls, made by its own citizens, in their own country … Transactional data, such as telephone logs and email headers, were collected by the billions … Analysts seldom found information even remotely pertinent to a terrorist threat.’
The encounter with MacAskill went smoothly until he produced his iPhone. He asked Snowden if he minded if he taped their interview, and perhaps took some photos? Snowden flung up his arms in alarm, as if prodded by an electric stick. ‘I might as well have invited the NSA into his bedroom,’ MacAskill says. The young technician explained that the spy agency was capable of turning a mobile phone into a microphone and tracking device; bringing it into the room was an elementary mistake in operational security, or op-sec. MacAskill exited, and dumped the phone outside.