Few knew that aside from the D-Notice, British authorities had already gone to great lengths to silence the Snowden press. The Guardian was content to sit on the information until Scotland Yard attacked one of their own. Two days after Greenwald’s partner was released, the newspaper revealed61 that a month before, on July 20, GCHQ officials accompanied the newspaper’s deputy editor, Paul Johnson; news and media executive director, Sheila Fitzsimons; and computer expert David Blishen to the basement of The Guardian’s King’s Cross offices. The officials watched as the three newspaper employees took angle grinders and drills to the hard drives and memory chips containing Snowden’s purloined data.
Five days after the news source reported on GCHQ’s G20 spying, two government officials—Jeremy Heywood, the Cabinet secretary to Prime Minister David Cameron, and Craig Oliver, Cameron’s director of communications62—darkened the doorway of The Guardian’s editor, Alan Rusbridger, shortly after he arrived at work. After a cordial but direct chat, the two officials were satisfied, believing they’d intimidated the staff enough to keep it from releasing more classified information. Hours after the government officials left, the world learned of Tempora’s existence. Cameron’s office held its tongue. More reports appeared. Heywood returned to The Guardian’s headquarters the day after the newspaper revealed Microsoft had granted pre-encryption access to the government. A call from Oliver followed three days later. The officials’ argument was that the sensitive information could be hacked. Rusbridger explained the material had been air gapped (a technique used by Poitras).63 Air gapping involves downloading information to and from a computer which has no Internet connection and is therefore physically isolated from the world. As The New Yorker reported, “[ … ] on five white Formica tables sat five new laptops, unconnected to the Internet or to any other network. The trove of documents from Snowden was kept on these computers, in encrypted file containers. Accessing each container required three passwords, and no individual knew more than one.”64 The only possible way for the information to be compromised was for it to be physically stolen. Rusbridger had hired security to guard the Snowden files around the clock.
Rusbridger refused to give in, but then between July 16 and 19, “government pressure intensified, and in a series of phone calls and meetings, the threat of legal action or even a police raid became more explicit.” Oliver Robbins, Britain’s deputy national security adviser, told Rusbridger on July 18 the government would be sending agents to The Guardian offices. After he made it clear that copies of the files existed in America and Brazil, Rusbridger submitted, “I preferred to destroy our copy rather than hand it back to them.” He did not want the confiscated material to be used in court if Snowden was apprehended.65 He also feared the authorities would make good on their threats. Rusbridger was not worried for two reasons.
He knew The Guardian could continue reporting from its New York base, and long before the computers and recording devices were destroyed, Rusbridger had sent a thumb drive of selected Snowden documents to the United States. The materials eventually reached their destination: the former editor of the Wall Street Journal (WSJ) and founding editor of ProPublica, Paul Steiger.66 The New York Times had also been given copies. Snowden consented to the arrangement.67 Representatives from the British Embassy in Washington would later attempt to coerce The Times into relinquishing its copies of the Snowden files.68
When the American justice system’s questionable pursuit of its own citizen journalists is placed alongside U.S. intelligence’s predominant role with GCHQ, it is not unreasonable to humor whether the NSA had a silent role in Miranda’s detention and the destruction of The Guardian’s hardware, especially considering the agency’s propensity to capitalize upon Britain’s looser national security and press laws. Britain does not offer its press analogous First Amendment rights. What is clear was two of the Five Eyes refused to admit wrongdoing and were willing to go to great and very questionable lengths to keep the press from informing the world about their surveillance methods, policies and practices. The unspoken consequences were clear. Journalism was suddenly viewed as criminal, and under British law, Miranda’s detention meant the press’s efforts were being equated with acts of terrorism.
Perhaps coincidental, the day The Guardian revealed its Snowden cache had been destroyed, the WSJ published, “New Details Show Broader NSA Surveillance Reach.”69# Eleven days before, readers were reassured by the NSA memo the agency only “touches about 1.6 percent” of the information carried by the Internet on a daily basis. It was understood that a very large number of the 1.6 percent is foreign correspondence after carefully monitored minimization procedures, reverence for the Fourth Amendment, and advanced, exacting technology carefully filtered out almost all American communications. Yet the report’s subtitle implies otherwise, “Programs Cover 75% of Nation’s Traffic, Can Snare Emails.”
The WSJ relays that the NSA has recourse to surveil the American populace through Blarney, Fairview, Oakstar, Stormbrew and a newly revealed and little known program titled “Lithium.” When met by the assertion U.S. intelligence spies on citizens’ email as well as metadata, NSA spokesperson Vanee Vines replied, “[M]inimization procedures [are used] that are approved by the U.S. attorney general and designed to protect the privacy of United States persons.” The newspaper’s response is surprising.
Whereas The Guardian and The Washington Post are known for their liberal perspectives and reporting, the WSJ is one of the most conservative newspapers in America. It quickly counters Vines’ claim, “For the 2002 Winter Olympics in Salt Lake City, officials say, the Federal Bureau of Investigation and NSA arranged with Qwest Communications International Inc. to use intercept equipment for a period of less than six months around the time of the event. It monitored the content [my emphasis] of all email and text communications in the Salt Lake City area.”
The WSJ proved the ability for the NSA to spy on Americans’ data as well as metadata had been deliberately used, albeit, in the terms of the White Paper, the “intrusion on privacy interests [was] limited.” Nonetheless, premeditated—and not incidental—violations had taken place.
On August 22, MacAskill returned to present, “NSA paid millions to cover Prism compliance costs for tech companies.”70 It is a historical marker to the recently revealed FISC ruling supposedly barring the NSA from continuing surveillance until it could remedy privacy invasions.
As the court was coming to a decision on whether American intelligence was breaking the law, the NSA’s data providers’ annual “certifications,” which allowed the agency to continue its collaborative surveillance work, were withheld. The Internet providers were nonetheless granted temporary extensions. This forced PRISM participants to incur the costs of maintaining program compliance. A December 2012 newsletter tells the tale but adds that their expenses were ultimately reimbursed by SSO and, by extension, the taxpayer. MacAskill’s report incriminates all participating companies’ claims of ignorance of the program with the possible exception of Apple, which had been inducted into the program the month the court decision was passed. It also brings into question why PRISM providers were expected to meet new certification standards if the court previously ruled that the data relay program was constitutional.
Yahoo acknowledged the disclosure by stating, “We have requested reimbursement consistent with this law” (two years after it took place), and Facebook claimed it had never been reimbursed. MacAskill reports that in lieu of the published evidence, Google still “den[ied] [having] joined Prism or any other surveillance program.” Both Microsoft and Google added in their comments that the firms were still waiting for permission to release their individual FISC orders to the public. Much like Hong Kong’s official statement regarding its decision not to detain Snowden, the companies’ incriminatory, blunt statements complemented by their pithy footnotes reveal they were tired of playing along with the federal government.
However, this is not the most telling portion of the newsletter. It reads,
“It is important that these Certifications were renewed [by FISC], because they authorize FAA702 operations until 23 September 2013, even if Congress fails to pass, or delays passage of, a replacement bill for the 2008 FAA legislation which enable all FAA collection.” The announcement adds, “[ … ] the law permits operations to continue as long as the Certifications are in effect.” An ethically dubious practice analogous to Bush’s stopgap which circumvented the FISC’s edict that open wiretapping was illegal, the license to grandfather in legislation grants powers not given by Congress. This means the FISC has the ability to interpret as well as retroactively create law by overriding future legislation. The newsletter ends with the note that the Office of General Counsel intended to appeal the court’s decision if it believed the NSA’s new collection methods failed to meet compliance standards.
Eight days after Gellman exposed the NSA’s deliberate abuses to the world, numerous news sources flocked to the WSJ’s “NSA Officers Spy on Love Interests” on August 23.71 The short but brutally condemning exposé put yet another nail in the debate coffin. It does so not by what it states but what it implies.
While discussing with journalists Gellman’s report, NSA Chief Compliance Officer John DeLong let slip during a conference call that willful domestic compliance violations have occurred. The incidences, which are mockingly referred to as “LOVEINT,” involve NSA employees spying on former and current boyfriends, girlfriends and spouses. Most misdirected targeting was self-reported because analysts are contractually obligated to undergo regular polygraph examinations. Some violations were found during audits. Yet there is an incongruity in the story.
When Feinstein informed her intelligence committee of the LOVEINT violations, she paradoxically assured everyone that “in most instances” the violations didn’t involve American data. Gellman had previously announced, “Some [classified NSA] reports make clear that an unauthorized search produced no records.”72 Placed alongside one another, the contradictory statements suggest XKeyscore and PRISM’s filters do not guard American information from spying eyes. If they did, Feinstein would have had nothing to say to her peers because proper programming would not have allowed American surveillance. Furthermore, there shouldn’t have been a report, because it is permissible to surveil any non-U.S. person, therefore the “instances” which didn’t involve domestic spying would not have been in an issue.
A month later,73 still under pressure by the media over the WSJ’s LOVEINT report, a September 11, 2013 letter from Inspector General George Ellard to the ranking member of the Senate Judiciary Committee, Charles Grassley, was released to the press.74 It is a response to Grassley’s request for answers four days after the WSJ broke the story.
Ellard opens by stating his office is currently conducting two instigations involving violations of misdirected domestic surveillance on past and present love interests and spouses. He was also in the process of reviewing another allegation. He goes on to outline several previous cases. For five years an NSA employee engaged in illicit contact chaining and collected American intelligence on two separate occasions. Another analyst spied on her husband, whom she suspected was having an affair. On the first day on the job, an individual queried the six email addresses of a former girlfriend. His violations went undetected for four days. One analyst, who was employed by the military, surveilled his wife, who was also a soldier. One privacy offender had made it a practice to research phone numbers of individuals whom she’d met at social settings.
Most resigned before investigations were completed. An agent who was found guilty was issued a letter of reprimand. Another received the same along with a 10-day suspension. Ellard admits in one case, “The Agency has been unable to locate records as to whether a referral was made to DoJ [the Department of Justice].” The Inspector General does not report a single instance where criminal charges were filed. The letter states some surveillance attempts found no results because the target was American. In others, domestic data was retrieved and removed. This would support the claim that once domestic information had been inadvertently collected, it is openly available whereas a general public search is protected by automated safeguards.
The day the original LOVEINT report filled headlines, another publication made its editorial debut with Snowden material. The British tabloid The Independent presented “UK’s secret Mid-East internet surveillance base is revealed in Edward Snowden leaks”75 on August 23. The article states that the news source had been informed “Britain runs a secret internet-monitoring station in the Middle East to intercept and process vast quantities of emails, telephone calls and web traffic.” It does so by tapping underwater fiber-optic cables within the region. The data goes to GCHQ, which is then shared with the NSA. The report explicitly declares the “information on its [the station’s] activities was contained in the leaked documents obtained from the NSA by Edward Snowden.” It repeats this claim several times throughout the exposé.
There are several oddities within and about the editorial. It was the first of its kind to solely focus upon classified Middle Eastern surveillance activities. Also, after relaying an overview of the purloined data, the article devotes approximately half of its time to The Guardian having destroyed its files and “agree[ing] to the Government’s request not to publish any material contained in the Snowden documents that could damage national security.” The Independent argues Süddeutsche Zeitung having published “Snowden revealed names of spying telecom companies” on August 2, even though “[The Guardian] had details of the highly controversial and secret programme for over a month,” was further evidence Snowden’s chosen source had been silenced. The censored news outlet was therefore forced to find another venue for the remaining disclosures. The tabloid incorrectly reports that Greenwald’s partner, David Miranda, had been arrested on August 18.
The day the story appeared on The Independent’s front page, Snowden issued a 150-word statement to The Guardian: “I have never spoken with, worked with, or provided any journalistic materials to [T]he Independent. The journalists I have worked with have, at my request, been judicious and careful in ensuring that the only things disclosed are what the public should know but that does not place any person in danger.” He estimates, “[ … ] the UK government is now seeking to create an appearance that [T]he Guardian and Washington Post’s disclosures are harmful, and they are doing so by intentionally leaking harmful information to The Independent and attributing it to others.”
Snowden’s announcement is accompanied by a response from Greenwald. The journalist adds, “[The Independent’s report is] the type of disclosure which journalists working directly with NSA whistleblower Edward Snowden have thus far avoided” and “Speaking for myself, let me make one thing clear: I’m not aware of, nor subject to, any agreement that imposes any limitations of any kind on the reporting that I am doing on these documents.”76 Another pundit acutely observed, “The Independent is owned by Alexander Lebedev and his son Evgeny. Lebedev Senior, a Russian oligarch, is a noted critic of Vladimir Putin. Putin has granted Snowden temporary asylum.”77
Snowden was aware the British government had taken advantage of a new periodical, The Wall Street Journal, having recently released classified data. It would appear plausible to the public, especially after The Guardian made known that it had destroyed its files, for the muted newspaper to have passed the classified baton to another British news source. Snowden assumes and all indications suggest GCHQ leaked delicate military information to frame The Guardian and the NSA leaker. Also, if military personnel were harmed as a result of the disclosure, the British government could better justify its detention of Miranda. The article explicitly states, “One of the areas of concern in Whitehall is that details of the Middle East spying base which could identify its location could enter the public domain. The data-gathering operation is part of a £1bn internet project still being assembled [my emphasis] by GCHQ.” Like “the White House,” “Washington” and “the Kremlin,” “Whitehall” is a metony
m for British government. The report makes sure to add that satellite dishes reside on the premises.
Britain’s version of the U.S. government’s faux terror threat was a less subtle but much more ingenious media whiteout. The Guardian had evoked sympathy by reporting it had been forced to destroy the Snowden files. This also implied the government had something to hide. GCHQ had The Independent lay the groundwork to point the finger if GCHQ’s station was attacked. To Britain’s credit, though an English surveillance base in the Middle East wasn’t targeted, it didn’t wag the dog further by evoking or feigning an attack. However, the damage had been done. The implication had been made that Snowden and Co. put Britain at risk.
The Independent and GCHQ would be caught red-handed in a week. Included in its report is “Information about the project [British intelligence’s station in the Middle East] was contained in 50,000 GCHQ documents that Mr. Snowden downloaded during 2012.” The fact Miranda had been in possession of 58,000 documents would not be released to the press for seven more days.78 The note could have been a complete fabrication which just happened to nearly hit the mark a week later. Until August 30, it was understood there was at most 20,000 files.79 Only the British government knew any different. Not surprisingly, The Independent issued its own rendition of the Post’s anti-disclosure editorial on October 13.80
On August 26, Poitras premiered, “Codename ‘Apalachee’: How America Spies on Europe and the UN.”81 It is equal parts follow-up to MacAskill’s June 30 report, “New NSA leaks show how US is bugging its European allies” and Greenwald’s July 8 article, “NSA and CIA have maintained staff in Brasilia to collect satellite data,” atop a general mishmash of miscellaneous data much like her July 1 review of NSA surveillance, “How the NSA Targets Germany and Europe.” The editorial’s exacting detail and description of particular surveillance practices is fascinating.
The Edward Snowden Affair Page 26