I had my low moments. Downie took me to the woodshed when I needed it. Even the bad days confirmed that I knew where I stood and what the Post stood for. By 2009, I no longer felt sure of either. Marcus Brauchli, the new editor, sounded disconcertingly vague about big decisions. His messages to the staff read as artful, contingent. Some of our best reporters began to stall, unsure of what to make of incompatible orders. One day Brauchli asked me for what he called an adjustment. He still wanted my most ambitious work, no mistake about that, but investigative projects should be delivered in weeks, not months. He must have known he could not have that both ways. When scandal broke at the Post itself, neither Brauchli nor the new publisher spoke convincingly about an abortive plan to sell six-figure tickets to lobbyists for “salon dinners” with reporters. Morale declined in the newsroom, as much the fault of the leadership as of staff cuts. Dafna preceded me to the exit. When she chanced across Brauchli in black tie one night, she cornered him against the stage, surrounded by print and broadcast executives, and told him he was wrecking the paper. I followed her out the door in the first days of 2010. We were pretty sure the Post we knew was gone.
* * *
—
As the Snowden reporting coalesced in the spring of 2013, I began a fellowship at the Century Foundation in New York. I was contemplating a book on the surveillance state and its discontents. Time magazine had assigned me a cover story that would preview some of the themes. I intended to confess that I had fallen into a kind of madness in my zeal to safeguard confidential sources and notes. I had built the digital equivalent of a sealed room, private and secure, but nobody came to visit. This could not be a working model of journalism. I would have to rebalance my priorities. Before I started writing, Snowden upended the tale. The surveillance threat was worse than I knew, and we could never have talked without the spooky tools. My story would have to be very different now.
I had not expected to test Time’s appetite for journalistic risk. Some of my freelance work touched on intelligence and law enforcement, but I needed no government secrets to write about self-described Patriot militias or Mitt Romney’s political childhood. How would the magazine handle a high-stakes intelligence story? The red box around a Time cover story still had power, if I could harness it. The Washington bureau chief, Mike Duffy, was a reporter’s reporter, one of the best I knew. I decided to try him. On May 7, after a primer on encryption, Duffy and the intelligence correspondent Massimo Calabresi joined me in a live, secure chat from Washington.
“I’ve got a line on a document that, I’m told, describes in some detail how much content telecoms and ISPs are handing over to the NSA under authority of the FISA Amendments Act. Which companies, which data,” I wrote.
“What would you like us to do to prepare?” Duffy asked.
“The main thing in advance is to get a sense of what management and the lawyers are going to think of posting a story and document that may have scary stamps on them.”
“We have to think about what’s required on our end, both in the way of guidance for you, red lines, and whether we can follow through on what you and they require,” Duffy typed back. Candidly, he did not feel sure of Time’s “commitment to publishing without regard to cost, under current fluid company circumstances.”
I probably should have quit that day, but I knew Duffy would tell me when it was time. Time Warner was preparing to unload its magazine business, a drag on the fabulous profits of its film and television divisions. It was an entertainment conglomerate, journalism barely in peripheral view. With the Time Inc. spin-off imminent, the stock market would not smile upon an expensive legal dispute about classified secrets. “Circumstances not encouraging of risk taking at moment,” Calabresi wrote the following week, after poking around a bit. Duffy phoned the same day to say the lawyers were stalling. As an editor, he badly wanted the story. As a friend, he could not advise me to stick around.
One last attempt brought me to Time Inc.’s general counsel Maurice Edelson. He and his staff were doubtless capable lawyers, but the conversation kept trailing off. If all they wanted was to keep their cards close, they were winning. Yet if that was the point, why would they meet me at all? Another suspicion occurred to me. I tore a page from my notepad and jotted three lines. Anyone acquainted with national security law would recognize the short-form classified markings and citations to the espionage statutes.
TS//SCI//NF
18 USC 793
18 USC 798
“Are these familiar to you?” I asked, passing the note around.
No. Afraid not.
Maybe I should have foreseen it. Time Inc. owned and operated close to a hundred magazines. Edelson and company lawyered for titles from Horse & Hound to SuperYacht World, alongside the news flagships of Time and Fortune. Even without a coming stock spin-off, their days must be spent on sponsorship deals, rights management, labor law, and corporate governance, maybe the occasional libel case.
“I mean no offense, but this is a specialized field,” I said. “I need to hear where the company stands from people who have encountered the issues before.”
That bumped the question up the chain to Time Warner’s general counsel, Paul Cappuccio, a conservative powerhouse who had clerked for Justice Antonin Scalia and served as associate deputy attorney general under President George H. W. Bush. I was not granted an audience, but word came down that he had retained Arnold & Porter to handle the Gellman problem. I was instructed to call Baruch Weiss, a partner at the firm and former acting deputy general counsel of the Department of Homeland Security. Duffy and Calabresi joined me around a speakerphone. Time Warner, Weiss told us, was pleased to offer its full support for my NSA story. The company had hired him to help us navigate. For our own protection, we would follow three guiding principles. First, I must not conduct interviews on Time’s behalf about anything classified. I should instead pass my questions to him. Weiss would take them up with a properly cleared government official and let my editors know what was fit to print. Second, Time did not authorize its employees to receive or retain classified information. Until the legal questions were resolved, I should not discuss government secrets—that is, my story—with the editors.
I was too flummoxed to register any third principle that might have emerged. Was it possible that Duffy had arranged this call as a prank? He might have the high jinks in him, but probably not the acting chops to account for the slow burn crossing his face.
“We have never, not once, done a story this way,” Duffy told Weiss, leaning into the speakerphone. Reporters did the interviews. If the government raised some kind of alarm, editors would take legal advice and decide. Weiss had the process backward, Duffy said. He was out of his lane.
These were special circumstances, Weiss responded amiably. We could fall afoul of the Espionage Act in the course of the reporting itself. Calabresi, struggling for self-control, asked whether Weiss sincerely imagined that an interview with a government official could be prosecuted as unlawful transmission or receipt of national defense information. That was unsettled law, Weiss said. Of course it was, Calabresi shot back. No one had ever been fool enough to bring charges like that against a reporter. This was basic First Amendment stuff. Duffy dialed back the heat. We were not the lawyers, he acknowledged. But whatever the abstract risk, Attorney General Eric Holder was already under pressure to scale back use of aggressive legal tools against journalists in leak cases. That, Weiss replied, was no guarantee at all.
The three of us passed notes. What was happening here?
Me: Does he still have USG obligations as a clearance holder?
Duffy: I don’t want him to be the interlocutor.
Me, double underlined: DEAL BREAKER.
The conversation went on, pointlessly. Eventually, it sank in that Weiss had not in fact stepped out of his lane. Time Warner had placed him athwart our path. I had met the man socially. I supposed no malign int
ent. Weiss had his instructions, and now we had ours. No one could say Time Warner killed an NSA scoop, not overtly. Should that become, improbably, a point of embarrassment, the company had merely provided us with top-shelf legal support. Duffy, looking caged, paced the conference room. Not long before pressing the disconnect button, he drew a finger across his throat. Calabresi pressed both palms against a big glass window, high above the Avenue of the Americas, and mimed a jump. “There must be a way,” he said, almost pleading. We all knew it was past time for me to leave.
And go where? For three days, I flirted with an approach to the New York Times. On May 15, I asked an old friend for Jill Abramson’s home phone number. The Times executive editor knew me casually, well enough that she’d probably take the call. Her paper had always been Brand X to me, the richer, imperious rival, but Abramson could do this story big if she bought in. Snowden left the choice to Poitras and me, but he doubted that the Times would have the guts. The paper had held back publication for more than a year after learning in 2004 about the Bush administration’s warrantless surveillance of domestic telephone calls. I did not know enough to judge, but I doubted that cowardice explained the delay. Whatever happened back then, I was pretty sure Abramson would say yes this time. Still, yes could mean a lot of things.
Dafna was the first to tell me I would be out of my mind to start from scratch at a newspaper I had never seen from inside. She did not know what had me barricaded, but I had never shut her out of a story before. Go back to the Post, she said. I could rewrite the last chapter of my newsroom career. My friends Steve Coll and Bob Kaiser, both former managing editors, said the same. “They’ll still see you as part of the institution and handle it that way,” Coll told me. In a time of austerity, “people will say, ‘This is how we demonstrate that we’re still in the game.’ They’re not going to fail you.”
I kept trying to imagine that phone call to the Times. At noon on May 19, I told Poitras and Snowden it was not going to work:
They don’t know me, I don’t know them, and the amount of mutual trust required is off the charts. I’d be asking them to represent me through unlimited legal proceedings around this story; to take on the government on national security; to rely on my judgment and assurances about confidential sourcing, not only involving this channel but others I pursue on my own; and to accept limits on what I will and will not tell them. . . .
I don’t know the personalities and their histories and their body language; I don’t know how to interpret them between the lines; I don’t know who really decides what, or how to use newsroom back channels to find out; and I don’t know how much to rely on ambiguous verbal assurances. . . .
I have been terribly conflicted about how to approach the Times, and the thought of going to the WaPo has been a complete relief.
That night I placed the call to Jeff Leen.
* * *
—
The PRISM slides arrived the next day, Pandora the day after that. I quickly became uneasy about losing them. Spinning magnetic platters in a cheap plastic case were no vessel for irreplaceable data. I pictured the drive shattered on the floor or fumble-fingered into the coffeepot. I imagined a subway snatch-and-grab, a black bag search of my home or office, a predawn visit from men and women with badges.
Was it a crime to make backup copies? Maybe so, by a black-and-white reading of the Espionage Act of 1917. The statute was notoriously broad. Time Warner’s lawyer was not wrong to say the law had yet to be tested squarely against the First Amendment. (A narrower and more recent statute became equally pertinent in the days to come.) Receiving, possessing, or communicating what I had learned, none of which was optional in my line of work, could theoretically lead to felony charges. If I took the statute literally, there was no lawful course for me at all: I could not keep the NSA documents, give them to someone else, or destroy them. Making copies might add another few counts to the list.
To hell with that. There was evidence here of domestic espionage that the government had dissembled and sometimes flat-out lied about. Game-changing rules had been written in secret, concealed from the public and even from judges with active cases before them. I took for granted that secrecy was inherent in spycraft. Intelligence operations could not be run by plebiscite. But powers so enormous called for free debate at least about their limits and principles. No one in a democracy got to assume new authority and hide it, least of all when it came to surveillance of the sovereign public. I was not immune to high dudgeon myself, it appeared.
My decision was visceral, but I knew what it meant. I would not willingly comply with an order to hand over these documents or my reporting notes. I would not leave them exposed to seizure. Backups could not wait. There had to be more than one, and they had to live elsewhere. Constructing a sufficient set of elsewheres—concealed, dispersed, redundant, and locked down as securely as civilian means allowed—was another skill set I had to teach myself. Seeking expert advice would add more risk than it cured. (“Say, where’s a good place to hide something that a nation-state or two may come hunting for? Asking for a friend.”) Readers who try the thought experiment should presume an adversary who has seen the same movies they have. Behind a toilet, like Michael Corleone’s gun? The other fellow remembers that. Hollow book, frozen ice pop, loose floorboard? Been there, found those.
Ordinary backup copies might not do the job. I tried to place myself in Snowden’s mind, guessing at a road map drawn in fractals. He used technical puzzles for tactical gain, each level more intricate than the last. Clearly, he had a penchant for surprise. It would be just like him to tell me one day that there was something concealed on this hard drive that he had not mentioned before. For sure he knew how to hide information in digital alcoves that a computer usually ignored. A click-and-drag copy of folders and files might leave vital data behind. I decided to make bit-by-bit clones, which reproduce even disk sectors marked as damaged or unused. The first clone took all night. More would have to wait a couple of days. The following morning, May 22, I caught a plane to Washington.
* * *
—
Before my first meeting at the Post, I stopped by the offices of Williams & Connolly, the paper’s law firm of choice since Katharine Graham went lawyer shopping in 1971. I had been around the block before with its senior partner Kevin Baine. Courtly as ever, he draped an arm across my shoulder and escorted me to an elegant office appointed in leather and antique woods. A portrait of the late justice Thurgood Marshall, who hired Baine as a law clerk in 1975, took pride of place on one wall. A casual observer might glance at the suit and the hair and the aquiline nose and mistake this guy for some kind of smooth-talking pol. That would miss the teeth behind his smile. Journalists loved the man for his forward-leaning advice. I had never heard Baine suggest that we soften a story “out of an abundance of caution,” the watchwords of timid lawyering. Aggressive reporting sometimes pushed boundaries and made people angry. Baine helped us sidestep needless trouble, but he did not run from risk.
He had agreed to see me without asking why. As I hoped, Baine already knew. He would join us at the Post in a couple of hours. Could he offer me individual advice under attorney-client privilege? He could try, he said. He did not expect a conflict of interest, but he would stop me if he heard one coming. Good. That was one of the main things I wanted to know. With that question open, I began hypothetically. Suppose a freelance reporter happened across a highly classified document. Something sensitive involving the NSA. Baine smiled, approving the approach. This freelance fellow, I told him, was looking to write a story for a newsroom not far from here. I offered a sense of the subject, reserving details for now.
Baine reviewed familiar territory first. The government had never brought Espionage Act charges against a reporter, and he strongly doubted it would start now, but no one could rule out prosecution if a national security story did conspicuous harm. There might or might not be a winning defense in the l
aw’s vagueness, overbreadth, and conflict with constitutional protections. Fewer defenses would apply if I was charged under a related statute, 18 U.S.C. § 798, “Disclosure of classified information.” Unlike the Espionage Act, this one specified that publication is an offense. It also confined itself to a narrow category of classified information, which happened to be the stuff I had in hand: information about a “cryptographic system” or “communication intelligence activities.” On the other hand, the government had shown no stomach for prosecution of journalists under that statute either. Sources were increasingly at risk of criminal charges, but not yet reporters. Since at least the 1980s, the Post and other news media had published stories from time to time about intercepted communications. I had done so myself. There were other exotic charges a prosecutor could try, such as “conversion of government property” for private gain, but those would really be a stretch.
We dropped the hypotheticals. The likeliest risk, verging on probable, was a subpoena for testimony and evidence once prosecutors inevitably brought charges against my source. The Post would fight a subpoena on my behalf, and it would appeal adverse rulings, but if the Justice Department kept pushing, we would probably lose. It might take years, but eventually I could face a hard choice. Contempt of court, it is said, puts the key to the jailhouse door in a contemner’s hands. Comply with the judge’s order, and you walk free. Refuse, and you stay behind bars until you submit or the order becomes moot. (In theory, the judge must release you if she concludes you will never comply, but judges do not tend to take that view.) If the newspaper had the means to hand over evidence, refusal could bring steep and escalating fines. Another good reason, I thought, to keep full control of the files myself.
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