The Snowden Files: The Inside Story of the World's Most Wanted Man (32 page)

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.’

The allegation that Greenwald and co were pushing a ‘political or ideological cause’, in much the same way as al-Qaida, caused civil liberties campaigners to express outrage. If true, this was an alarming threat to democracy, the group Liberty said. In Brussels there was astonishment. The Council of Europe, which polices human rights, wrote to home secretary Theresa May. It asked May to explain how Miranda’s treatment was compatible with article 10 of the European convention on human rights, guaranteeing freedom of expression.

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’.

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 technology and Big Data.