The Snowden Files: The Inside Story of the World's Most Wanted Man (33 page)

Under the outdated 2000 Regulation of Investigatory Powers Act (RIPA), the only legal control on what GCHQ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.

‘Why is Russia allowing Snowden to stay? Snowden is in Russia with encrypted stuff. Does it not cross Snowden’s mind that the Russians might want to decrypt it?’ Judge Openshaw said.

It looked an uphill struggle to persuade the judges of the key point behind the case. Greenwald put in a statement saying: ‘The most serious and problematic aspect of the defendants’ response to this claim is their equating of publishing articles based on national security material with acts of terrorism.’

The authorities were having none of this. The Home Office said it had acted in the interests of national security.
The authorities had wanted to know ‘where Mr Miranda fitted in the broader Edward Snowden network’. The journalists involved weren’t motivated by public interest but were ‘advancing a political or ideological cause’.

The day after the review finished – with Laws and co retiring for some time to consider their judgement – the action moved back to Westminster, and to a committee room of parliament. The 2013 James Bond movie
Skyfall
features M – the head of MI6, played by Judi Dench – giving evidence at a public inquiry. A group of MPs from the ISC lob hostile questions at her. (They are fed up because MI6 has lost a hard drive containing the names of undercover agents …)

Dench’s/M’s public grilling gets worse. The film’s bad guy is a renegade MI6 officer, Raoul Silva, played by Javier Bardem with psychopathic glee. Bardem/Silva bursts into the room, dressed as a policeman. He opens fire. Fortunately James Bond (Daniel Craig) arrives to rescue his boss. The ISC’s chairman, Gareth Mallory (the British actor Ralph Fiennes), proves useful in a tight spot. He shoots several bad guys.

The real-life ISC’s first public hearing on 7 November was a more sedate affair. Seated around a horseshoe-shaped table were Sir Malcom Rifkind and nine MPs and peers. There was no Bond villain. Instead, a flunkey in a gold chain opened the door for the committee’s star witnesses. The three heads of MI5, MI6 and GCHQ – Andrew Parker, Sir John Sawers and Sir Iain Lobban – sat in a row. Behind them were other officials from Whitehall’s twilight world (and a huge bodyguard, no doubt armed with an exploding pen).

Previously the ISC’s meetings with UK intelligence chiefs had been held in private. This one was televised live – or almost live. There was a two-minute delay on the TV feed in the unlikely event someone blurted out a secret. Opening the 90-minute session, Sir Malcolm hailed the hearing as a ‘significant step forward in the transparency of our intelligence agencies’. He omitted to mention that the chiefs had secretly got the questions in advance. Inevitably journalists went with the same tired intro. The spies were coming out of the shadows!

Anyone who had hoped Lobban and co might shed light on the Snowden revelations was to be disappointed. In broad terms, the service chiefs defended their mission – its legality, appropriateness, targets and methods. For much of the session, it appeared that Snowden didn’t exist. Asked how a ‘junior clerk’ had managed to gain access to GCHQ’s secrets, Parker said British agencies had ‘stringent security arrangements’.

Rifkind inquired: ‘Can we assume that you are having discussions with your American colleagues about the hundreds of thousands of people who appear to have access to your information?’

Parker replied: ‘All three of us are involved in those discussions.’

If anyone had been fired over GCHQ’s debacle we never found out. Nor was there any explanation of how the NSA allowed the biggest leak in the history of western intelligence to take place.

Rifkind asked another question. It was the equivalent of a friendly tennis player lobbing the ball up in the air
so his partner could smash it. ‘Why do you think it is necessary to collect information on the majority of the public in order to protect us from the minority of potential evil-doers?’