The Snowden Files: The Inside Story of the World's Most Wanted Man

by Luke Harding

  Wherever he went the Guardian editor carried a small piece of destroyed computer in his inside pocket, rather as a medieval pilgrim would cherish a saint’s bone. ‘It’s a sort of artefact, a symbol of the role of the state versus the journalist,’ he says.

  Rusbridger’s revelations and the absurdity of the Miranda affair had had a galvanic effect on British politicians. It was as if a jolt of electricity at last stirred a body that had previously been in a state of comfortable slumber. Since the Guardian published its first NSA article on 5 June, the story had ignited a debate across the world. In Germany, there was uproar; in the US, Congress was reviewing oversight; in Britain … torpor. Most MPs and newspapers ignored it. A handful of Conservatives batted the news away with the phrase ‘spies spy’. Downing Street said: nothing to see here.

  Why this silence? There was one immediate explanation. When the Snowden revelations began, the secretary of Britain’s unique DA notice organisation, retired Air Vice-Marshal Andrew Vallance, secretly circulated a letter among the BBC and the newspapers, on 7 June 2013, reminding them to be mindful of national security issues. He was issuing the notice on GCHQ’s behalf.

  His ‘Private and Confidential’ letter said: ‘There have been a number of articles recently in connection with some of the ways in which the UK intelligence services obtain information from foreign sources … The intelligence services are concerned that further developments of this same theme may begin to jeopardise both national security and possibly UK personnel.’

  The DA notices, a rusty hangover from the cold war, are supposed to be voluntary advice; and they are supposed to protect patriotic media organisations from inadvertently publishing sensitive military information. In practice, the notices, with their hint of menace should they be defied, serve as a good way of closing down, or at least dampening, public debate. Those media who reported the Snowden disclosures at all, therefore, initially did so in a subdued fashion, particularly the state-funded BBC. The DA notice kept down the British public temperature.

  There were further, cultural, reasons. Britain did not endure the same 20th-century totalitarian nightmare as Germany, or Nazi- or Soviet-occupied countries. The British took freedoms for granted. There hadn’t been a revolution since 1688, and that bloodless one didn’t really count. Moreover, spies in British popular culture were always the good guys: James Bond in the racy fantasies of Ian Fleming, or the dedicated professionals from the BBC TV drama Spooks.

  The Guardian’s Jonathan Freedland observes that Britain ‘has a fundamentally different conception of power to, say, the United States’. It doesn’t have a Bill of Rights or a written constitution, or the American idea that ‘we the people’ are sovereign. Rather, the British system still bears the ‘imprint of its origins in monarchy’, with power emanating from the top and flowing downwards. Britons remain subjects rather than citizens. Hence their lack of response towards government intrusion.

  ‘It’s not the old stiff upper lip of stoicism that you’re seeing, but a shrug of resignation and a habit of deference so deeply ingrained we hardly notice it,’ Freedland argues.

  In Aldous Huxley’s dystopian novel Brave New World, the citizens are happy to chew soma, a drug that confers bliss and forgetfulness. Apart from a few troubled intellectuals – alpha specimens such as Bernhard Marx – the inhabitants of Huxley’s London of the future are content playing Obstacle Golf, engaging in promiscuous sex or watching Feeling Pictures. The summer of 2013 in Britain felt a bit like that to those writing about Snowden’s disclosures.

  As more alarming details emerged of GCHQ’s mass capture of data, however, some stirred and opened their eyes. They began to wonder if the system that was supposed to oversee the UK’s spy agencies might be in need of reform. The system wasn’t working. The former cabinet minister Chris Huhne revealed that the cabinet hadn’t been told about TEMPORA, which was tested in 2008 and fully implemented in 2011. Huhne sat in on the National Security Council. But even he and other members were in the dark. So who signed off on it?

  Apparently, the spy agencies had briefed no politician other than foreign secretary William Hague about their new, aggressive powers. They effectively misled a parliamentary committee that was busy scrutinising the government’s communications data bill. The Home Office proposed it. The bill would have allowed the police, the security services and other national agencies to get access to all British metadata and emails on a massive scale. And the companies would have to keep data available for their trawling for 12 months. The bill was killed off in spring 2013 following a revolt by Nick Clegg, the Liberal Democrat leader and David Cameron’s coalition partner.

  The political wrangling over the bill – dubbed the snoopers’ charter – was largely a sham exercise, it now emerged. Secretly, GCHQ was already doing a version of what the bill envisaged. The agency had kept quiet. A joint memo from MI5, MI6 and GCHQ made no mention of mass data collection. Legislators felt duped.

  ‘I think we would have regarded this as highly, highly relevant,’ the Tory peer Lord Blencathra – David Maclean when he was an MP – said. He added: ‘Some people were very economical with the actualité.’

  With a few exceptions, the opposition Labour party was surprisingly silent on the issue. The Labour leader Ed Miliband said nothing of substance. Labour was in government when GCHQ trialled TEMPORA. Miliband’s brother David was foreign secretary between June 2007 and May 2010 under both Tony Blair and Gordon Brown. According to the documents, David Miliband signed the secret certificates in 2009 giving GCHQ legal cover for their bulk fibre-optic cable hacking.

  Another watchdog that failed to bark, or even growl, was the Commons intelligence and security committee (ISC), the parliamentary body that oversees the UK’s three spy agencies. Its chair, Sir Malcom Rifkind, hadn’t heard the name TEMPORA before the Snowden revelations – though he does maintain he knew of GCHQ’s broad surveillance powers. He also sniffs at disclosures of cable-tapping, and says this practice has gone on since the second world war.

  Rifkind personifies the problem with the ISC: that it is a tame creature of the executive, and not the public. Rifkind is a former Conservative party foreign secretary and defence minister. When in government he received briefs from MI6, the agency he is now supposed to drag to account. The prime minister hand-picked the ISC’s members, vetting anyone likely to cause trouble. In the words of Huhne, ‘All its MPs are paid-up members of the security establishment.’

  From the outside the ISC looks weak, too close to government, and reluctant to grill Britain’s securocrats. It has a small team of part-time staff and only nine cross-party members. This lack of clout raises the question of how it can provide credible oversight. (The three agencies have a £2 billion budget and 10,000-plus staff.) Rifkind shrugs this off. He says the ISC got new powers in early 2013, reports to parliament, and can now force the spooks to hand over material. Its budget also went up from £700,000 to £1.3 million, he says.

  Arguably, the ISC’s biggest weakness is that its members are not … well, getting any younger. Most are in the twilight of their political careers. Like Dianne Feinstein, the 80-year-old chair of the Senate intelligence committee, Rifkind isn’t exactly a child of the internet age. As supposed regulators, can they really decipher highly complex and technical documents? Rusbridger cites the example of a very senior member of the British cabinet who had followed the Snowden stories only hazily and whose main experience of intelligence seemed to date back to the 1970s. ‘The trouble with MPs,’ this senior politician admitted, ‘is most of us don’t really understand the internet.’

  In the Snowden files, GCHQ types boast of Britain’s flexible surveillance laws and comparatively weak regulatory regime – a ‘selling point’ for the Americans. (The other two advantages, according to a top-secret 2013 GCHQ document, are the UK’s ‘geography’ and ‘partnerships’.) The UK’s legal regime isn’t merely open to elastic interpretation. It was drafted in an analogue age, well before the explosion in technolog
y and Big Data.

  Under the outdated 2000 Regulation of Investigatory Powers Act (RIPA), the only legal control on what GCHQ can do with their vast pool of purloined data is a secret certificate, signed by the foreign secretary of the day. This lists the categories under which GCHQ can run searches of their own database. The NSA’s access to the British data, however, seems only limited by a ‘gentleman’s agreement’. And, as everyone knows, spies are not gentlemen.

  In the year 2000, when RIPA was enacted, the massive global shift in telecommunications to a network of submarine fibre-optic cables was just starting to take place: but no ordinary civilian could have envisaged that the obscure RIPA regulations would allow GCHQ to break in to the swirling internet. Buffering, to provide a holding pool for the flowing streams of global data, wasn’t even possible until 2008–9. The idea of ‘collecting all of the signals all of the time’ would have seemed meaningless. Online communication and social media were in their infancy. As the technologies raced ahead, Britain’s spying law remained silent – and permissive.

  The former director of public prosecutions, Ken Macdonald, says that these ‘blinding transformations’ have rendered RIPA and other intelligence legislation ‘anti-modern’.

  As far as the spooks were concerned, however, no changes were wanted. David Cameron, William Hague and other government ministers asserted – somewhat childishly – that Britain had the best oversight regime in the world. They insisted there was nothing to debate. The only thing to talk about was the perfidious behaviour of the Guardian which – no concrete examples were ever given – had helped the bad guys.

  One senior Whitehall figure called Snowden a ‘shit-head’. Dame Stella Rimington, the former head of MI5, branded him and Julian Assange ‘self-seeking twerps’. (Dame Stella was at a literary festival, promoting her new career as a writer of spy novels.) Snowden hadn’t acted out of patriotic reasons. He was a narcissist, a traitor and quite probably a Chinese agent, the officials fumed. A more subtle critique, expressed by one neo-con, said Snowden had acted from a sense of ‘millennial generational entitlement’.

  In October 2013, Andrew Parker, MI5’s new boss, used his first public appearance to berate the media for publishing Snowden’s leaks. He didn’t need to mention the Guardian by name, but said the disclosures had handed ‘the advantage to terrorists … We are facing an international threat and GCHQ provides many of the intelligence leads upon which we rely. It causes enormous damage to make public the reach and limits of GCHQ techniques,’ he said. Another unhappy insider claimed ‘our targets are going dark’. He argued: ‘If you talk about your SIGINT capabilities you don’t have any SIGINT capabilities.’

  Did these claims stack up?

  Nobody was disputing that Britain and the US had plenty of enemies – terrorists, hostile states, organised criminals, rogue nuclear powers and foreign hackers intent on stealing secrets and making mischief. Nor did anybody object to individual targeting: this was what the spy agencies did. The problem was with strategic surveillance, the non-specific ingestion of billions of civilian communications, which Snowden laid bare.

  The government’s claims of damage were always un-particularised. Without any accompanying detail they were impossible to prove, or disprove.

  The novelist John Lanchester – who spent a week trawling through GCHQ’s secret files – cast doubt on whether publishing information on broad surveillance powers really helped al-Qaida. He noted that Osama bin Laden’s compound in Abbottabad didn’t even have a telephone line running into it, let alone email, computers or mobile phones. Clearly the bad guys have known for some time that electronic communications might be intercepted. As Lanchester writes, bin Laden’s lack of electronic footprint was itself dodgy: a sign to the spies that Something Was Up.

  Nigel Inkster, the former deputy head of MI6, came to a similar conclusion. ‘I sense that those most interested in the activities of the NSA and GCHQ have not been told much they didn’t already know or could have inferred,’ he said.

  But for Britain’s right-wing newspapers the claims by the security agencies were hallowed fact. And an opportunity to smite the Guardian, a paper deeply unpopular on Fleet Street since its revelations of phone hacking. The scandal had brought the prospect of state-backed regulation of the newspaper industry much nearer, something the Sun, Daily Mail and Telegraph bitterly oppose. All ignored the Snowden leaks. It could be charitably argued that it was difficult for rival newspapers without access to the documents to cover the story.

  In the wake of Parker’s speech, the Daily Mail led a furious patriotic assault on the Guardian, calling it ‘The paper that helps Britain’s enemies.’ It was, the Mail said, guilty of ‘lethal irresponsibility’. Journalists were incapable of deciding questions of national security, it added, raising the question of what the Mail would have done if it had got hold of the Snowden files. All in all it was a curious abnegation of journalism from a newspaper that in other contexts vigorously asserts the principles of independence and press freedom.

  The rest of the world, however, took a different view. Some two dozen respected editors from a range of international titles defended the Guardian, and the role of the press in informing the public and holding those in power to account. Some of the titles – the New York Times, the Washington Post, Der Spiegel – had done their own reporting on the Snowden leaks. Others – such as Haaretz, the Hindu, El Pais – hadn’t. But all acknowledged that the disclosures had stimulated legitimate debate – over the role of spy organisations and the ‘proper perimeters for eavesdropping’, as the Times’s Jill Abramson put it.

  For the Germans there were echoes of the ‘Spiegel affair’ of 1963, when the Spiegel’s legendary editor Rudolf Augstein was arrested and jailed for publishing defence leaks. It was a key test for West Germany’s postwar democracy: Augstein was freed and the Bavarian defence minister who imprisoned him, Franz Josef Strauss, resigned. The smashing up of the Guardian’s laptops was front-page news all across Germany.

  Siddhartha Varadarajan, the editor of the Hindu, meanwhile remarked that the details of snooping exposed by newspapers are ‘not even remotely related to fighting terrorism’.

  He wrote: ‘Osama bin Laden did not need Edward Snowden’s revelations about PRISM to realise the US was listening to every bit of electronic communication: he had already seceded from the world of telephony and reverted to couriers. But millions of people in the US, UK, Brazil, India and elsewhere, including national leaders, energy companies and others who are being spied upon for base reasons, were unaware of the fact that their privacy was being compromised.’

  None of this permeated to Downing Street. The prime minister instead chose to shoot the messenger. He dropped ominous hints that charges could follow if the Guardian carried on publishing. In a speech in Brussels, Cameron said that he couldn’t afford to take a ‘la-di-da, airy-fairy’ view of the work of the intelligence services, a dangerous choice of words for an old Etonian. Cameron dodged awkward questions about whether Britain was complicit in the bugging of Angela Merkel’s phone.

  A previously obscure Tory MP, Julian Smith, suggested the paper had compromised the identities of British agents (it hadn’t) and ‘stands guilty potentially of treasonous behaviour’. Smith’s campaign would have had more credibility were it not for a gaffe of his own. He hosted a visit to parliament by staff from Menwith Hill, the NSA’s super-secret facility in North Yorkshire in his constituency. Afterwards, Smith, MP for Skipton and Ripon, posed with intelligence staff outside the Gothic building. Smith put the photo on his website. The identities of NSA and GCHQ employees were there for all to see. Smith said they had consented to the picture.

  The British strategy was to talk tough on security, while ignoring the more embarrassing revelations of GCHQ spying on friends and allies. In November, the affair spilled from parliamentary committee rooms, bowled along the Thames, and reached the neo-Gothic portals of the Royal Courts of Justice. Court 28, next to the cafe, was the venue for a two
-day judicial review. Outside fell a fine London drizzle. Inside the courtroom bewigged barristers leafed through their files. One QC had a book titled Blackstone’s Guide to the Anti-terrorism Legislation; a British flag above a balustraded building adorned its cover.

  Lawyers acting for Miranda were challenging the use of schedule 7 powers to detain him over the summer. A coalition of 10 media and free speech organisations supported Miranda. The Brazilian was the claimant; the Home Office and police defendants. Three judges, led by Lord Justice Laws, were hearing the divisional court case.

  Matthew Ryder QC set out the facts: Miranda was in transit between Berlin and Rio when counter-terrorism police stopped him at Heathrow. He had been carrying journalistic material. Articles based on this material had revealed previously unknown US–UK government mass surveillance, and had started an ‘international debate’. The authorities had abused Miranda’s right to freedom of expression. Their actions had been disproportionate, wrongly purposed, and incompatible with counter-terrorism law.

  The three judges, however, seemed unimpressed with Ryder’s reasoning. Lord Justice Laws interrupted repeatedly. His courteous interventions showed a twinkling intelligence. But it was clear the judge didn’t know a great deal about the internet. The three judges were in their mid or late sixties. When Miranda’s barrister mentioned the NSA’s PRISM program, Laws interjected: ‘It means they [the security services] can’t read the terrorists’ emails!’

  Laws also took a dim view of investigative journalism. ‘I don’t really know what is meant by the term “responsible journalist”,’ he mused at one point. ‘It doesn’t make a journalist omniscient in security matters … It’s just rhetoric really.’

  The other judges, fellow members of the establishment, had little sympathy with Snowden, or his situation. ‘There must be a quid pro quo about Snowden sitting in Russia. It’s an obvious thought,’ Mr Justice Ouseley chipped in.