by Luke Harding
It included more than 50,000 files belonging to British intelligence. GCHQ had apparently exported them over to the US, and allowed them to fall into the hands of this junior US private contractor. But one of the reasons for Johnson’s nervousness was that possession of these documents back in Britain presented special – and scary – legal problems.
The Guardian’s current sleek glass-walled London offices give little hint of the paper’s nonconformist Manchester origins back in 1821. But the lobby does have a bust of a formidable bearded figure; this is CP Scott, legendary editor for 57 and a half years. His famous dictum ‘comment is free, but facts are sacred’ is still the Guardian’s animating principle.
Inspired by CP Scott’s tough-mindedness, editor-in-chief Alan Rusbridger had handled some big leaks in the past, of which WikiLeaks had been the most recent and famous. But this one was without precedent.
British journalists do not enjoy the constitutional free speech protection of their US counterparts. There is also a strong cultural understanding in the US that journalism has a key function in society. Although this can lead to establishment-minded behaviour sometimes, it has also made possible a tradition of investigative reporting in the spirit of Watergate, when two young Washington Post journalists brought down President Nixon in the 1970s.
Britain, by contrast, has a repressive culture of state secrecy. At the very moment Woodward and Bernstein were being fêted in Washington for their Watergate disclosures, some young journalists in Britain wrote an article called ‘The Eavesdroppers’. It revealed for the first time the mere existence of GCHQ as a British radio spying agency. They were promptly had up and convicted at the Old Bailey under the Official Secrets Act. One, a US citizen named Mark Hosenball, was deported without a right to trial as a purported ‘threat to British national security’.
Against this history, the challenge of publishing top-secret GCHQ documents in a British paper was a sizeable one.
The Official Secrets Act, passed amid fears of German espionage in 1911 and updated in 1989, makes it a crime for British officials to leak intelligence information. But it also has clauses that potentially criminalise journalists. While there is no specific public interest defence so the Guardian’s editor could be caught by provisions that make it an offence to publish intelligence information, such a disclosure has to be deemed damaging. The only arguable defence would be that the published article was not in fact damaging or, at any rate, not intentionally so. Police moves could therefore be just round the corner.
Mere possession of the Snowden files in London could also lead to a civil gag order, if the British government got to hear about their presence. The files were undoubtedly highly confidential and, while unlikely to identify James Bond-style undercover secret agents, they were certainly the property of the government. National security was at stake.
Under the UK’s law of confidence, a judge could quite possibly be persuaded to grant a government request for an immediate injunction banning all publication of such material, and demanding the files’ return. The paper could challenge this through the courts, by arguing there was a public interest in what it was disclosing. But at best, the case could embroil Rusbridger in a lengthy, uncertain and costly legal battle. In the meantime the paper would be unable to report on any of the documents’ contents. An injunction would therefore be a journalistic disaster.
Hunkered down the next day with prominent media QC Gavin Millar, Rusbridger considered his legal options. The 100 per cent safe course was to destroy all the UK files at once. Another safe alternative was to hand the files to a security-cleared politician and call for an inquiry into their contents – the obvious recipient was former Conservative foreign secretary Malcolm Rifkind. He now chaired the notoriously weak parliamentary intelligence and security committee which was supposed to oversee bodies such as GCHQ. Rifkind would probably hand the files straight back to the spies themselves, unread.
Millar’s advice was one thing. But Rusbridger also had to take into consideration his obligations towards Snowden. Snowden ‘had risked his life to get hold of this stuff’, the editor felt. Furthermore, Snowden had given the material to the Guardian because he believed Congress couldn’t be trusted. The special US courts that dealt with intelligence matters met in secret. Only a newspaper could begin the debate he wanted. And it couldn’t take place if the public remained clueless as to the extent of the state’s suspicion-less surveillance.
‘Of all the journalist ethical dilemmas you have to face in life, it was a fairly big one,’ Rusbridger says.
He decided to ask some trusted staff to make a detailed study of the files. The data-set was unwieldy. A few documents were obviously sensitive. But the majority were confusing and corporate: PowerPoints, training slides, management reports, diagrams of data-mining programs. Much was unclear, although it was evident that GCHQ’s technical capacities and sheer ambition were very great. And that GCHQ’s ‘special relationship’ with its sister organisation the NSA went surprisingly deep.
The Guardian team set up a small ‘war room’ and were tough about security. A guard was posted 24 hours a day on the corridor to check IDs against a highly limited list. All phones were banned: a row of BlackBerrys and smartphones sat on a table outside with their owners’ names on yellow Post-it notes. The windows of the bunker were papered over. All the computers were new. None had ever been connected to the internet or any other network – a precaution against hacking or phishing attacks. They were to remain ‘air-gapped’ throughout.
Multiple passwords were needed to log in; no staff member knew more than one password. Work was written and saved on USB sticks; nothing went on the network. In the corner an air-conditioning unit gave off a low hum. There was also a shredder.
Without natural light and strictly off-limits to cleaners, the bunker soon became frowsty. ‘It smells like a teenage boy’s bedroom in here,’ said one visitor.
Posted onto a whiteboard was a memo from Rusbridger: ‘Edward Snowden approached the Guardian because he says people have no idea of the extent of what he regards as the surveillance state. He argues that technology has run ahead of the law or the ability of anyone – citizens, courts, press or Congress – to have meaningful oversight of what is happening. This is why we have the documents.’
The memo added: ‘We should search for material relevant to these concerns which are of high public importance. We are not engaged in a general fishing expedition.’
The team interrogating Snowden’s material was made up of trusted senior journalists. It included Nick Hopkins, the Guardian’s defence and security editor, data editor James Ball, veteran Nick Davies and Julian Borger, who shuttled between London and New York. Greenwald in Brazil was lead reporter. MacAskill operated out of the US.
Having the material was one thing, making sense of it another. At first the reporters had no idea what ‘strap one’ and ‘strap two’ meant. It was only later they realised these were classifications beyond top secret. Greenwald had given MacAskill one helpful clue – look for a program called TEMPORA. On day one the team stayed until midnight, returning the next day at 8am. The process became easier when TEMPORA led them to GCHQ’s internal ‘Wiki’, which Snowden had uploaded. Mostly, it was written in plain English.
Soon the board was covered in the codenames of NSA/GCHQ programs – SAMUEL PEPYS, BIG PIGGY, BAD WOLF. The early stages of document analysis were heavy-going. ‘The documents were seriously technical, fantastically dull and utterly brilliant,’ Hopkins says. Hopkins would shout: ‘What does QFD mean?’ Someone would answer: ‘Query-focused database.’ And what’s a ‘10gps Bearer’? Or MUTANT BROTH? MUSCULAR? EGOTISTICAL GIRAFFE? And so on.
One of the first shocks revealed was that GCHQ had bugged foreign leaders at two G20 summit meetings hosted in London in 2009. Labour premier Gordon Brown and foreign secretary David Miliband apparently authorised this spying.
The agency had set up fake local internet cafes equipped with key-logging software. T
his allowed GCHQ to hack delegates’ passwords, which could be exploited later. GCHQ also penetrated their BlackBerrys to monitor email messages and phone calls. A team of 45 analysts kept a real-time log of who phoned whom during the summit. Turkey’s finance minister and 15 other members of his delegation were among the targets. This had, of course, nothing whatever to do with terrorism.
The timing of the Guardian’s discovery was piquant. David Cameron was about to host another international summit for G8 countries on the picturesque banks of Lough Erne in Northern Ireland. Presidents Obama and Putin would be dropping in, and other heads of state. Would GCHQ bug them too?
Fearing an injunction any moment, Paul Johnson decided to rush a print edition on to the British streets. On Sunday 16 June, he rolled 200 special copies off the press in the early evening. Another 30,000 copies were printed at 9.15pm. This made it harder for any late-night judge to order ‘Stop the presses!’ and prevent distribution. They would be too late.
That evening Rusbridger’s phone rang. Retired Air Vice-Marshal Andrew Vallance was on the line. Vallance ran the uniquely British ‘D-Notice’ system, under which the government discreetly discourages the media from publishing stories said to endanger national security.
In 1993, as part of a tentative move towards glasnost, they were rebranded Defence Advisory (DA) notices. This change was meant to reflect the fact that it was voluntary whether or not to seek government advice.
Whether ‘voluntary’ or not, DA notices could be generally relied on to dampen media coverage. Vallance had already issued a ‘private and confidential’ notice not only to the Guardian itself but to the BBC, Sky and other UK broadcasters and newspapers. On behalf of GCHQ it discouraged them from following up Guardian US’s original PRISM scoops. British media largely complied and barely covered the story. Now, he made clear his concern that the Guardian had failed to consult him in advance before telling the world of the G20 snooping.
This was the beginning of a struggle between the British government and the Guardian. Since David Cameron became Conservative prime minister in 2010, Rusbridger had barely spent half an hour with him. ‘It wasn’t a warm or constructive relationship,’ he says. But the following day, while Cameron was hosting the G8 leaders at Lough Erne, his press officer Craig Oliver slipped out and called Rusbridger. With Oliver, a former BBC editor, was Sir Kim Darroch, a senior diplomat and the government’s national security adviser.
Sniffing – he was suffering from hay fever – Oliver said the Guardian’s G20 story risked ‘inadvertent damage’ to national security. He said officials were unhappy with the G20 revelations, and some of them wanted to chuck Rusbridger in jail. ‘But we are not going to do that.’
Rusbridger said that the Guardian was handling Snowden’s leaked material in a responsible manner. Its focus wasn’t operations or names, but the boundaries between security and privacy. The paper was willing to engage with Downing Street on future stories, he added, and to listen to any specific security concerns.
Coming down the pipeline was the TEMPORA article, about Britain’s feats of ‘Global Telecoms Exploitation’. This, as Rusbridger knew, might provoke even more trouble from Britain’s spymasters.
He offered Oliver a conference call in which the Guardian would lay out key details of the TEMPORA story in advance. The aim was to avoid genuine national security damage – and an injunction. Gibson had used the same approach in the US in her dealings with the White House, and Rusbridger had a similar dialogue with the US State Department in 2010, in advance of publishing some of its WikiLeaks cables. Oliver agreed the government wanted a ‘sensible conversation’. But, asked about possible injunctions, he refused to give any assurances, saying vaguely: ‘Well, if the story is mega …’
The Guardian went ahead and told Sir Kim Darroch, the national security adviser, about TEMPORA. Two days later, the government came up with a formal response. Oliver said, apologetically: ‘Things move at a very slow pace.’ He said the prime minister had only recently been briefed on Snowden after Putin and the other guests had gone. And he was ‘concerned’. Oliver added: ‘We are working on the assumption you have got rather a lot of stuff.’
The upshot was a personal visit from Cameron’s most lofty emissary, the cabinet secretary Sir Jeremy Heywood. This top official had advised three prime ministers and three chancellors. Assured, urbane and intelligent, Oxford- and Harvard-educated Heywood was used to having his own way.
In a 2012 profile, the Mirror had dubbed Heywood ‘the most powerful unelected figure in Britain … and you will never have heard of him.’ Heywood lived in some style in Clapham, south London, it reported (he was building a wine cellar and a gym). Nick Pearce, the former head of Downing Street’s policy unit, told the Mirror jokingly: ‘If we had a written constitution in this country, it would have to say something like, “Not withstanding the fact that Jeremy Heywood will always be at the centre of power, we are free and equal citizens.” ’
There was an unhappy precedent for using cabinet secretaries on these sorts of missions. In 1986, the then prime minister Margaret Thatcher dispatched Sir Robert Armstrong all the way to Australia, in a vain legal attempt to quell intelligence agency leaks. MI5 were seeking to halt the publication of Spycatcher, a memoir by disgruntled former MI5 officer Peter Wright. In it, Wright alleged that MI5’s former director general Sir Roger Hollis had been a Soviet spy, and that MI5 had ‘bugged and burgled’ its way across London, and eavesdropped on Commonwealth conferences. There were echoes here of GCHQ’s bugging of the G20.
Thatcher’s move was a debacle. Armstrong was ridiculed in the witness box, not least for his smug phrase that civil servants were sometimes ‘economical with the truth’. Wright’s memoir sold hundreds of thousands of copies worldwide on the back of the publicity.
At 8.30am on Friday 21 June, Heywood arrived at the Guardian’s Kings Place office. ‘He was clearly quite irritated,’ Johnson says. The prime minister, the deputy PM Nick Clegg, the foreign secretary William Hague, the attorney general and ‘others in government’ were all ‘deeply concerned’, said Sir Jeremy. (The reference to attorney general Dominic Grieve was deliberate; it was he who would decide any Official Secrets Act prosecution.)
Heywood wanted reassurances that locations of troops in Afghanistan wouldn’t be revealed, or ‘our agents undercover’. ‘Absolutely,’ Rusbridger agreed. The government was ‘grateful’ to the Guardian for the reasonable way it had behaved so far, Heywood conceded. But further publication could help paedophiles and endanger MI5 agents.
The editor said the Guardian’s surveillance revelations were dominating the news agenda in the US and had sparked a huge debate. Everyone was concerned, from Al Gore to Glenn Beck; from Mitt Romney to the American Civil Liberties Union. Tim Berners-Lee, the founder of the internet, and Jim Sensenbrenner, the congressman who drew up the Patriot Act, were also supportive. Even President Obama had said he welcomed the debate.
‘We are hoping you will take the same view as Obama. It’s a good debate,’ said Rusbridger.
Heywood responded: ‘You have had your debate. Debate is raging. You don’t need to publish any more articles. We can’t have a drip drip drip of this material into the public domain.’
He left the threat of legal action against the Guardian open. He said it was now up to the attorney general and the police to decide whether to take things ‘further’. ‘You are in possession of stolen property,’ he emphasised.
Rusbridger explained that British action would be futile. Snowden’s material now existed in several non-British jurisdictions. Had he heard of Glenn Greenwald? Greenwald lived in Brazil. If the Guardian were restrained, Greenwald would certainly resign and carry on publishing. Heywood: ‘The PM worries a lot more about the Guardian than an American blogger. You should be flattered the PM thinks you are important.’
The Guardian was now a target for foreign powers, he went on. It might be penetrated by Chinese agents. Or Russians. ‘Do you know how many Chinese
agents are on your staff?’ He gestured at the modern flats visible from the window across muggy Regent’s Canal. The Guardian sits at a busy crossroads: in one direction King’s Cross and St Pancras stations, between them an old goods yard, soon to be Google’s new European HQ. On the canal are barges, coots and moorhens. Heywood pointed at the flats opposite and remarked, ‘I wonder where our guys are?’ It was impossible to tell if he was joking.
Behind the scenes, a lot of people were apparently furious with the Guardian. And willing to take extreme steps. ‘What do you know about Snowden anyway? A lot of people in government believe you should be closed down, and that the Chinese are behind this.’
Rusbridger responded that this top-secret GCHQ material was already shared with … well, thousands of Americans. It wasn’t, after all, the Guardian that had sprung a leak but GCHQ’s transatlantic partners. Heywood rolled his eyes, signalling ‘Tell me about it.’ But he insisted that the UK’s own vetting procedures were rigorous. ‘It isn’t in the public interest to be writing about this. All this stuff is scrutinised by parliament. We are asking you to curb your enthusiasms.’
Rusbridger reminded Sir Jeremy politely of the basic principles of press freedom. He pointed out that 40 years earlier similar arguments had raged over the New York Times and the Pentagon Papers. US officials asserted it was the job of Congress to debate the conduct of the Vietnam war, not the Fourth Estate. The Times had published anyway. ‘Do you think now it was wrong to publish?’ Rusbridger asked the mandarin.
The encounter was inconclusive. For the government, it proved that the Guardian was obdurate. For the Guardian, it showed that the government was willing to bully behind the scenes, to try and shut down debate. Heywood’s charges – you are helping paedophiles and so on – were by their nature unprovable. And as was later to become plain, the British government was not in fact at all keen to use its draconian legal powers. The reason, presumably, was simple: they feared Snowden and Greenwald had some kind of nuclear insurance policy. If HMG called in the police, maybe every single sensitive document would be spilled out online, WikiLeaks-style.
