by Luke Harding
Other senators, however, came up with tougher proposals to rein in the agency. One was Jim Sensenbrenner, chair of the House judiciary committee. Sensenbrenner was the primary author of the Patriot Act, which he devised to ensure American spooks could fight terrorism in the post-9/11 world. Now he said that the Bush and Obama administrations had misinterpreted his legislation – using it to spy on innocent Americans. It was a classic Dr Frankenstein moment, when the scientist realises his creation isn’t the beautiful thing he had wished for, but an out-of-control monster.
By way of corrective, Sensenbrenner introduced a ‘USA Freedom Act’. The act, proposed with Senator Patrick Leahy, envisages major reforms. Among them an end to bulk-collection programs and a new ‘special advocate’ who could represent civil liberties and challenge secret government requests in the FISA court. In essence, Sensenbrenner proposed a return to the targeted model of spying. He asserted: ‘Intelligence professionals should pursue actual leads – not dig through haystacks of our private data.’
Meanwhile, Senators Wyden and Udall, the two critics of the NSA in pre-Snowden times, introduced their own draft legislation to stop warrantless snooping on Americans. Wyden suggested that the Senate should have the power to confirm the NSA’s new director.
In Kremlinological fashion, the White House had let it be known that it favoured a clear-out at the top. Alexander – a four-star general – confirmed his departure from the NSA in March 2014. (The Wall Street Journal, citing a senior US official, said Alexander offered his resignation in June. The White House declined it.) Other officials whispered that it would be a good idea if Clapper moved on at the same time. In theory Clapper was supposed to be conducting the government’s intelligence review. In practice he was a dead man walking, fatally damaged by his false statement before Congress.
The NSA used every opportunity to remind Americans of 9/11 and of its role in keeping America safe. The NSA’s critics pointed out that Angela Merkel wasn’t exactly al-Qaida. In an interview with Der Spiegel, Senator John McCain called for a ‘wholesale housecleaning’ in the US intelligence community, starting from the top. Asked why US spooks had bugged Chancellor Merkel, he offered a concise reply: ‘The reason I think they did it is because they could do it.’
New faces, then, but by 2014 it seemed that the most of the programs exposed by Snowden would carry on. The White House had promised transparency but seemed unwilling to pull the plug on mass surveillance, and its electronic equivalent of Bentham’s panopticon.
According to the New York Times, Obama had reluctantly concluded there was no workable alternative to the bulk collection of metadata, including metadata from Americans. The administration hinted that it might reduce the number of years it keeps this information – from five to three. But this was hardly a concession.
The judiciary, however, took a different view. In December 2013, Richard Leon, a federal judge, delivered a massive legal blow to the NSA. He ruled that the agency’s bulk collection of Americans’ phone records probably violated the US constitution. The program was ‘almost Orwellian’ in its scope, he said, adding ‘The government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack.’ Leon said the constitutional challenge – brought by two plaintiffs – was likely to succeed. There was one crumb of comfort for the government: it was allowed to appeal.
Snowden had achieved the debate he had always wanted, and then some. But in terms of legislative reform it was too early to say whether meaningful change would happen.
In the meantime, hostility towards the leaker from the administration was undimmed. Neither Obama nor Secretary of State John Kerry showed any backtracking in their attitude towards a man whom Kerry dubbed a ‘traitor to his country’. Presidential pardon? Nope. The espionage charges against him still stood. These were unauthorised communication of government property and wilful communication of classified intelligence to an unauthorised person.
Were he to return from Moscow he would face a total of 30 years in jail. Further charges could be added. The death penalty is also available under a section of the act. Despite changing the course of political history by his extraordinary disclosures, it would be a long time before Snowden saw home again.
14
SHOOT THE MESSENGER
Custody suite, Heathrow airport, London
Sunday 18 August 2013
‘Please do not make any reference to espionage activity. It is vital that MIRANDA is not aware of the reason for this ports stop.’
MESSAGE FROM BRITISH SECURITY SERVICE, MI5
It was a Sunday morning in the English countryside, and two middle-aged men were blowing up an inflatable canoe. One was 59-year-old Alan Rusbridger, the editor of the Guardian. The New Yorker magazine describes him thus: ‘He wears square, black-framed glasses and has a mop of dark hair that sprawls across his head and over his ears. He could pass for a librarian.’ Rusbridger’s companion was his friend Henry Porter. Porter, aged 60, writes for Vanity Fair and the Observer; he publishes thrillers and campaigns for civil liberties.
The two journalists were acting out a mildly eccentric boyhood dream – to paddle up the Avon in Warwickshire, savouring the tranquil sights of the riverbank. They set off from Stratford-on-Avon, home of the Bard. They hoped for moorhen, ducks and maybe even a vole. This trip could have come straight from the pages of Scoop, a delicious novel about the press by the English satirist Evelyn Waugh.
Scoop’s journalist hero William Boot pens nature columns for a living. ‘Feather-footed through the plashy fen passes the questing vole’ was one of his more famously memorable lines. When Boot is sent to cover a war in far-off Africa he takes with him an inflatable canoe. (Boot was modelled loosely on Bill Deedes, legendary editor of the Daily Telegraph, who in 1935 arrived to cover the war in Abyssinia with a quarter of a ton of baggage.)
Rusbridger’s canoeing weekend was intended to be a break from the gruelling demands of editorship. It didn’t last. Still on the riverbank, he answered his mobile phone. Police had arrested David Miranda, the 28-year-old partner of Glenn Greenwald, at Heathrow airport! They were holding him under schedule 7 of the UK’s Terrorism Act! They had confiscated his rucksack!
The terrorism law, enacted in 2000, is aimed at killers. It is designed to allow police to stop possible jihadists or IRA members planning bombings, as they enter Britain. It is a draconian piece of legislation: no ‘probable cause’ or specific suspicion is needed. The purpose of the stop is a grave one: to assess whether someone may be involved in the ‘commission, instigation or preparation of acts of terrorism’.
Miranda wasn’t a terrorist. The British authorities knew that perfectly well. He was the partner of a journalist. They suspected he was in fact carrying copies of Edward Snowden’s NSA and GCHQ files, which Greenwald was engaged in researching and publishing. Their prime purpose, as they were later to admit, was simply to get hold of the files, and find out how much Greenwald knew.
On 11 August, Miranda had set off from their home in Rio de Janeiro to Berlin, flying via Heathrow. He spent several days with Greenwald’s fellow journalist Laura Poitras in the German capital. They discussed film projects. He did some sightseeing. He spent a couple of nights in a hotel. He was now flying home, again via the UK. The British and Americans had him under surveillance – possibly even the same spooks who had bugged Angela Merkel’s phone.
The heavily encrypted Snowden files Miranda was carrying formed the basis of Greenwald and Poitras’s numerous articles for the Guardian and for other international publications, including France’s Le Monde, Germany’s Der Spiegel, the Washington Post and the New York Times. One of the files was an index, compiled by a piece of specialised software, to Greenwald’s 58,000 GCHQ documents. There was also further encrypted material. A passphrase to the index was scribbled down and carried in Miranda’s wallet.
Rusbridger knew nothing about the details of Miranda’s journey. Greenwald had boo
ked Miranda’s flight through the paper’s New York office, as part of the steady stream of research the paper was financing. It was one of the perils of working with freelancers: the Guardian was picking up the bills, but it wasn’t always calling the shots.
In moments of crisis Rusbridger radiates calm. The New Yorker’s Ken Auletta calls him ‘unflappable’. Profiling him, Auletta wrote that Rusbridger’s mild-mannered appearance is deceiving; underneath he is steely. One of his tasks as an editor is to apply himself in a calm manner to multi-dimensional problems.
The Snowden story was certainly one of those. On his iPad, Rusbridger carried a sprawling spider diagram linking the diverse issues around the Snowden material. They were legal and editorial. And physical – the need to keep the material safe. There were multiple actors in different jurisdictions; precarious alliances between the Fourth and Fifth Estates. Seemingly the spy agencies were now actively bugging Guardian contributors. This made communication difficult.
During his 18 years as Guardian editor, Rusbridger had run numerous big stories. He had presided over its transformation from a left-leaning British niche print title to a global digital brand. In 2009 the Guardian had uncovered rampant phone hacking in Rupert Murdoch’s newspaper empire, and brought about the closure of his tabloid News of the World followed by a dramatic series of arrests. In 2010 Rusbridger published the pioneering WikiLeaks documents. But the Snowden story was the biggest of all.
The editor’s immediate problem was how to help Miranda. Police had held him at Heathrow airport since 8.05am. Under the Terrorism Act they could detain him for nine hours. Rusbridger phoned Gill Phillips, the Guardian’s in-house head of legal. She was in a village in Wiltshire. Too far from Heathrow. Phillips called Bindmans, prominent solicitors specialising in civil liberties. One of them, Gavin Kendall, scrambled to the airport.
In the meantime, Rusbridger and Porter spent the next four hours paddling along the Avon. They were heading downstream from Stratford to Bidford, a village where William Shakespeare is said to have crashed out under a crab-apple tree after a drinking competition. The editor kept his phone in a waterproof bag; every so often he would unzip it, to get updates.
Miranda describes his ordeal in detention as ‘intimidating, stressful and deeply frightening’. Police had demanded passports of all passengers as they came off the BA plane; when they reached Miranda, they led him in silence to a custody suite. There, they told him he was being examined under anti-terrorism legislation. ‘This made me very afraid,’ Miranda says. ‘When I heard “terrorism” I was really shocked and told them I had nothing to do with terrorism.’
The two examining officers told him that if he didn’t answer their questions he would go to prison. They rifled through his backpack. They seized his possessions – a Samsung laptop, personal photos, DVDs. They also took two highly encrypted thumb drives and a hard drive.
Miranda wanted Greenwald to be phoned, as his lawyer. Police refused on the grounds that Greenwald was not a UK-registered lawyer. They offered him a call to a duty solicitor, which Miranda refused, suspicious of an unknown person. He had no interpreter. Eventually, the police did call Greenwald in Brazil – waking him at 6.30am Rio time, 10.30am in the UK – and told him Miranda was being held as a terrorist. ‘I was deeply upset, shocked and worried for him,’ Greenwald says.
The two police asked virtually nothing about terrorism. They didn’t inquire if Miranda were a member of a terrorist group. Miranda says the questions he was asked ‘seemed random and unfocused … They gave me the impression that they were questioning me just to give themselves time to examine the material.’
Documents obtained in the subsequent legal proceedings from MI5, the British security service, explain this lack of curiosity. MI5 and the NSA decided several days earlier to have Miranda stopped at Heathrow and his documents seized. They knew for certain he was carrying the data – either through intercepts or an informant – and were desperate to find out how much Snowden had leaked. For the spies, it was an extraordinarily lucky opportunity. But they seem to have been anxious not to let Miranda and his friends realise they had been betrayed.
On 15 August – three days before the stop – MI5 contacted the Metropolitan Police’s counter-terrorism command, SO15. The agency requested detective superintendent James Stokley to have Miranda grabbed. The agency filled in what is known as a ‘ports circulation sheet’ (PCS) with the official request. In a box which asked the author to confirm that possible terrorism was involved, MI5 wrote: ‘Not applicable.’
Unfortunately, the police had only one power to search and seize passengers’ baggage without the need to give any sort of a reason. This was schedule 7 of the act. A controversial clause, regularly the subject of complaints that it was being abused, schedule 7 nevertheless had certain technical requirements. It could only be used to assess whether someone was involved in ‘acts of terrorism’.
The police pointed out the problem. MI5 redrafted the PCS form. Twice. In its final version MI5 claimed: ‘Intelligence indicates that MIRANDA is likely to be involved in espionage activity which has the potential to act against the interests of UK national security … We assess that MIRANDA is knowingly carrying material, the release of which would endanger people’s lives. Additionally the disclosure, or threat of the disclosure, is designed to influence a government, and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under schedule 7.’
It was an absurd account. It was written to mimic the wording of the language in the act defining ‘terrorism’. But of course, the authors knew it was not Miranda’s intention to make threats to endanger anyone’s life, least of all to achieve some ‘ideological objective’. The definition in the act was supposedly aimed at a fanatic who threatened to blow up a plane.
MI5 explained their anxiety: ‘Please do not make any reference to espionage activity. It is vital that MIRANDA is not aware of the reason for this ports stop. We would be grateful if this stop could be made to seem as routine as possible, and that it appears that this stop is not at the request of the Security Service.’
The use of schedule 7 against someone who was known not to be a terrorist was a blatant abuse – and an alarming precedent in which a government matched journalism with terrorism. This was the first time the much-criticised section of the act had been used against a journalist carrying source material. Coming on top of the forced destruction of the Guardian’s computer on 20 July, it looked like a chilling attack on press freedom.
During its dealings with the Guardian over the summer, Downing Street had never once suggested that the newspaper was engaged in terrorism. ‘If there had been a real risk of a terrorism-related offence, one would have expected a prompt application for an injunction,’ Rusbridger says. Under the UK’s 1984 Police and Criminal Evidence Act, journalistic material enjoys protection. MI5 should have got a judge to approve Miranda’s detention. Instead it circumvented court procedures by using anti-terror laws.
Miranda was eventually released without charge at 5pm, and encouraged to board a flight – minus his stuff – back to Rio. His lawyer only managed to see him an hour before the nine hours were up. (Only one in 2,000 people stopped under schedule 7 are held for more than six hours. He was one of them.) News of his detention set off an international firestorm. The Brazilian government expressed ‘grave concern’. It said the use of schedule 7 in this case was ‘without justification’.
Back in Rio, Greenwald met an exhausted Miranda at the airport, with cameras looking on. Greenwald characterised his partner’s ordeal as a ‘failed attempt at intimidation … This is obviously a rather profound escalation of their [the US and UK’s] attacks on the newsgathering process and journalism,’ he wrote. He added emotionally, in terms that were perhaps somewhat over the top: ‘Even the mafia had ethical rules against targeting the family members of people they feel threatened by.’
A telling commentary came from Lord Falconer, the Labour minister who had helped introduce the Terrorism Act. ‘The state has exceeded its powers in this case,’ he said. ‘I am very clear that this does not apply, either on its terms or in its spirit, to Mr Miranda.’
May, however, was unapologetic. So was Oliver Robbins, the deputy national security adviser who had forced the Guardian to bash up its own laptops. Lawyers acting for Miranda challenged his detention in the High Court. In a blistering affidavit, Robbins said the Snowden disclosures had hurt national security. He offered no proof but accused Greenwald of ‘very poor information security practice’.
This was ironic: it was the British agency GCHQ that had lost control of sensitive information, not the Guardian. Robbins made no mention of the UK’s dysfunctional intelligence-sharing deal with the NSA, which apparently meant thousands of American officials – and passing private contractors – could read top-secret GCHQ files.
Two days after police scooped up Miranda, Rusbridger reacted by telling the story for the first time of what had happened in the Guardian’s basement – the hot, messy work of pulverising hard drives. The paper’s Simon Jenkins described the episode as the ‘most bizarre act of state censorship of the internet age’; the two GCHQ boffins who supervised the destruction were ‘like so many book burners sent by the Spanish inquisition’.