No Place to Hide Page 8

  By that point, we knew that speaking by telephone or by Google chat was out of the question. Both were far too insecure. We somehow failed to connect via OTR, the encrypted chat program we had been using, so Janine suggested that we try Cryptocat, a recently released program designed to impede state surveillance that became our primary means of communication throughout my time in Hong Kong.

  I told her about my meeting that day with Snowden, that I was convinced of his authenticity and of the documents he provided. I told her I had already written a number of articles. Janine was particularly excited by the Verizon story.

  “Great,” I said. “That article is ready. If there are minor edits, fine, let’s do them.” I stressed to Janine the urgency of publishing quickly. “Let’s get it out now.”

  But there was a problem. The Guardian editors had been meeting with the paper’s lawyers and were hearing alarming warnings. Janine conveyed what she had been told by the Guardian lawyers: publishing classified information can be depicted (albeit dubiously) as a crime by the US government, a violation of the Espionage Act, even for newspapers. The danger was particularly acute for documents relating to signals intelligence. The government had refrained from prosecuting media outlets in the past, but only as long as the media observed the unwritten rules giving officials an advance look and the opportunity to argue that publication would damage national security. This consultative process with the government, the Guardian lawyers explained, is what enables newspapers to demonstrate they have no intent to harm national security by publishing top secret documents and thus lack the requisite criminal intent to be prosecuted.

  There had never been a leak of documents from the NSA, let alone one of this magnitude and sensitivity. The lawyers thought there was potential criminal exposure—not only for Snowden but, given the Obama administration’s history, for the paper as well. Just weeks before my arrival in Hong Kong, it was revealed that the Obama Justice Department had obtained a court order to read through the emails and telephone records of reporters and editors from the Associated Press to find their source for a story.

  Almost immediately after that, a new report revealed an even more extreme attack on the news-gathering process: the Department of Justice had filed a court affidavit accusing Fox News Washington bureau chief James Rosen of being a “co-conspirator” in his source’s alleged crimes, on the grounds that the journalist had “aided and abetted” the source’s disclosure of classified information by working with him closely to receive the materials.

  Journalists had noted for several years that the Obama administration was waging unprecedented attacks on journalism. But the Rosen episode was a major escalation. To criminalize cooperation with one’s source as “aiding and abetting” is to criminalize investigative journalism itself: no reporter ever obtains secret information without working with his source to get it. This climate had made all media lawyers, including the Guardian’s, extra cautious and even fearful.

  “They’re saying that the FBI could come in and shut down our office and take our files,” Gibson told me.

  I thought that was ridiculous: the very idea that the US government would shut down a major newspaper like the Guardian US and raid its office was the kind of overanxious advice that had made me, during my legal career, learn to hate lawyers’ forbiddingly excessive warnings. But I knew Gibson wouldn’t—and couldn’t—simply dismiss those concerns out of hand.

  “What does this mean for what we’re doing?” I asked. “When can we publish?”

  “I’m really not sure, Glenn,” Gibson told me. “We need to get everything sorted first. We’re meeting with the lawyers again tomorrow and we’ll know more then.”

  I was truly concerned. I had no idea how the Guardian editors were going to react. My independence at the Guardian and the fact that I had written few articles with editorial consulation, and certainly none as sensitive as this, meant that I was dealing with unknown factors. Indeed, the entire story was sui generis: it was impossible to know how anyone would react because nothing quite like this had happened before. Would the editors be cowed and bullied by US threats? Would they opt to spend weeks in negotiations with the government? Would they prefer to let the Post break the story so as to feel safer?

  I was eager to publish the Verizon story immediately: we had the FISA document and it was clearly genuine. There was no reason to deny Americans the right to see what the government was doing to their privacy, not even for one more minute. Equally urgent was the obligation I felt to Snowden. He had made his choice in a spirit of fearlessness, passion, and strength. I was determined that the reporting I did would be driven by the same spirit, to do justice to the sacrifice our source had made. Only audacious journalism could give the story the power it needed to overcome the climate of fear the government had imposed on journalists and their sources. Anxious legal concerns and the Guardian’s hesitancy were the antithesis of such audacity.

  That night, I called David and confessed my growing worry about the Guardian. Laura and I discussed my concerns as well. We agreed to give the Guardian until the next day to publish the first article or we would explore other options.

  Some hours later, Ewen MacAskill came to my room to get an update on Snowden, whom he hadn’t yet met. I shared with him my concern about delays. “You don’t need to worry,” he said about the Guardian. “They’re very aggressive.” Alan Rusbridger, the Guardian’s longtime editor in chief in London was, Ewen assured me, “very engaged” with the story and “committed to publishing.”

  I still viewed Ewen as a company man but was feeling a little better about him, given his own desire to publish quickly. After he left, I now told Snowden about Ewen traveling with us, referring to him as the Guardian’s “babysitter” and said that I wanted them to meet the next day. I explained that getting Ewen on board was an important step in making the Guardian editors feel sufficiently comfortable to publish. “No problem,” Snowden said. “But you know you have a minder. That’s why they sent him.”

  Their meeting was important. The next morning, Ewen came with us to Snowden’s hotel and spent roughly two hours questioning him, covering much of the same ground I had the day before. “How can I know you are what you say you are?” Ewen asked at the end. “Do you have any proof?” Snowden pulled out from his suitcase a pile of documents: his now-expired diplomatic passport, a former CIA identification card, a driver’s license, and other government ID.

  We left the hotel room together. “I’m completely convinced he’s real,” Ewen said. “I have zero doubts.” In his view, there was no longer any reason to wait. “I’m going to call Alan as soon as we get back to the hotel and tell him we should start publishing now.”

  From that point forward, Ewen was fully integrated into our team. Laura and Snowden had both felt instantly comfortable with him, and I had to confess to feeling the same way. We realized that our suspicions had been entirely unfounded: lurking under the surface of Ewen’s mild-mannered, avuncular exterior was a fearless reporter eager to pursue this story in exactly the way that we all thought necessary. Ewen, at least as he viewed himself, wasn’t there to impose institutional constraints but to report and, at times, to help overcome those constraints. In fact, during our stay in Hong Kong, Ewen was often the most radical voice, arguing in favor of disclosures that not even Laura or I—or, for that matter, Snowden—were sure should be made yet. I quickly realized that his advocacy for aggressive reporting inside the Guardian would be vital in keeping London fully behind what we were doing, and it was.

  As soon as it was morning in London, Ewen and I called Alan together. I wanted to convey as clearly as possible that I expected—demanded, even—that the Guardian begin publishing that day, and to get a clear sense of the paper’s position. By that point—only my second full day in Hong Kong—I had mentally committed to taking the story elsewhere if I sensed any substantial institutional hesitation.

  I was blunt. “I’m ready to publish this Verizon article and I don�
��t understand at all why we’re not doing it now,” I told Alan. “What’s the delay?”

  He assured me that there was no delay. “I agree. We’re ready to publish. Janine has to have one final meeting with the lawyers this afternoon. I’m sure we’ll publish after that.”

  I brought up the Post’s involvement with the PRISM story, which was only fueling my sense of urgency. Alan then surprised me: he not only wanted to be first to publish NSA stories in general, but also wanted to be the first to publish the PRISM story specifically, clearly eager to scoop the Post. “There’s no reason we should defer to them,” he said.

  “That’s great with me.”

  London was four hours ahead of New York, so it was going to be some time before Janine got into the office and even longer still before she met with the lawyers. So I spent the Hong Kong evening with Ewen finalizing our own PRISM story, reassured that Rusbridger was being as aggressive as necessary.

  We finished the PRISM article that day and used encryption to email it to Janine and Stuart Millar in New York. Now we had two major, blockbuster scoops ready to be published: Verizon and PRISM. My patience, my willingness to wait, was wearing very thin.

  Janine started her meeting with the lawyers at 3:00 p.m. New York time—3:00 a.m. in Hong Kong—and sat with them for two hours. I stayed up, waiting to learn the outcome. When I spoke with Janine, I wanted to hear one thing only: that we were immediately running the Verizon article.

  That’s not what happened, not even close. There were still “considerable” legal questions to be addressed, she told me. Once those were resolved, the Guardian had to advise government officials of our plans to give them an opportunity to persuade us not to publish—the process I loathed and had long condemned. I accepted that the Guardian would have to let the government make its case for non-publication, provided that the process did not become some protracted means of delaying the story for weeks or diluting its impact.

  “It sounds like we’re days or even weeks away from publishing—not hours,” I told Janine, trying to pack all my irritation and impatience into an online chat. “Let me reiterate that I will take any steps necessary to ensure that this story runs now.” The threat was implicit but unambiguous: if I couldn’t get the articles out immediately at the Guardian, I would go somewhere else.

  “You’ve already made yourself very clear on that,” she curtly replied.

  It was now the end of the day in New York, and I knew that nothing would happen until at least the following day. I was frustrated and, by this point, very anxious. The Post was working on its PRISM article, and Laura, who was going to have a byline on that story, had heard from Gellman that they were planning to publish on Sunday, which was five days away.

  Talking it over with David and Laura, I realized I was no longer willing to wait for the Guardian. We all agreed I should start exploring alternatives as a Plan B in the event that there was more delay. Calls to Salon, my publishing home for years, as well as the Nation, quickly bore fruit. Both told me within a matter of hours that they would be happy to run the NSA stories right away, and they offered all the support I would need, with lawyers ready to vet the articles immediately.

  Knowing that there were two established venues ready and eager to print the NSA articles was emboldening. But in conversations with David, we decided there was an even more powerful alternative: to simply create our own website, entitled NSAdisclosures.com, and begin releasing the articles there, without the need for any existing media outlet. Once we went public with the fact that we had in our possession this huge trove of secret documents about NSA spying, we would easily recruit volunteer editors, lawyers, researchers, and financial backers: an entire team, motivated by nothing but a passion for transparency and real adversarial journalism, devoted to reporting what we knew was one of the most significant leaks in US history.

  From the start, I believed that the documents presented an opportunity to shine a light not only on secret NSA spying but on the corrupting dynamics of establishment journalism. Breaking one of the most important stories in years through a new and independent model of reporting, separate from any large media organization, was extremely appealing to me. It would boldly underscore that the First Amendment’s guarantee of a free press and the ability to do important journalism were not dependent on affiliation with a large media outlet. The free press guarantee does not only protect corporate reporters but anyone engaged in journalism, whether employed or not. And the fearlessness conveyed by taking such a step—We’re going publish thousands of top secret NSA documents without the protection of a large media corporation—would embolden others and help shatter the current climate of fear.

  That night, I again barely slept. I spent the early morning hours in Hong Kong calling people whose opinions I trust: friends, lawyers, journalists, people with whom I had worked closely. They all gave me the same advice, which didn’t really surprise me: it’s too risky to do this alone, without an existing media structure. I wanted to hear the arguments against acting independently, and they provided many good ones.

  By late morning, after I had heard all the warnings, I called David again while I simultaneously spoke online with Laura. David was particularly adamant that going to Salon or the Nation would be too cautious and fear-driven—“a step backward,” he called it—and that, if the Guardian delayed further, only releasing the stories at a newly created website could capture the intrepid spirit driving the reporting we wanted to do. He was also convinced that it would inspire people everywhere. Though initially skeptical, Laura was persuaded that taking such a bold step—creating a global network of people devoted to NSA transparency—would unleash a massive and powerful surge of passion.

  So as afternoon approached in Hong Kong, we resolved jointly that if the Guardian was unwilling to publish by the end of that day—which had not yet begun on the East Coast—I would leave and immediately post the Verizon article on our new website. Though I understood the risks involved, I was incredibly excited by our decision. I also knew that having this alternative plan in place would make me much stronger in my discussions that day with the Guardian: I felt I didn’t need to stay attached to them to do this reporting, and freeing oneself of attachments is always empowering.

  When I spoke with Snowden that same afternoon, I told him about our plan. “Risky. But bold,” he typed. “I like it.”

  I managed to get a couple of hours of sleep, woke in the middle of the Hong Kong afternoon, and then confronted the fact that I had hours to wait for the start of Wednesday morning in New York. I knew that, in some fashion, I was going to communicate an ultimatum to the Guardian. I wanted to get on with it.

  As soon as I saw Janine come online, I asked her what the plan was. “Are we going to publish today?”

  “I hope so,” she replied. Her uncertainty made me agitated. The Guardian still intended to contact the NSA that morning to advise them of our intentions. She said we would know our publishing schedule only once we heard back from them.

  “I don’t get why we’re going to wait,” I said, now having lost patience with the Guardian’s delays. “For a story this clean and straightforward, who cares what they think we should and shouldn’t publish?”

  Aside from my contempt for the process—the government should not be a collaborative editorial partner with newspapers in deciding what gets published—I knew there was no plausible national security argument against our specific Verizon report, which involved a simple court order showing the systematic collection of Americans’ telephone records. The idea that “terrorists” would benefit from exposing the order was laughable: any terrorists capable of tying their own shoes would already know that the government was trying to monitor their telephone communications. The people who would learn something from our article weren’t the “terrorists” but the American people.

  Janine repeated what she had heard from the Guardian’s lawyers and insisted that I was operating under a wrong assumption if I thought the paper wa
s going to be bullied out of publishing. Instead, she said, it was a legal requirement that they hear what US officials have to say. But, she assured me, she would not be intimidated or swayed by vague and frivolous appeals to national security.

  I didn’t assume that the Guardian would be bullied; I just didn’t know. And I was worried that, at the very least, talking to the government would significantly delay things. The Guardian did have a history of aggressive and defiant reporting, which is one of the reasons I went there in the first place. And I knew that they had the right to demonstrate what they would do in this situation rather than have me assume the worst. Janine’s proclamation of independence was somewhat reassuring.

  “OK,” I said, willing to wait and see. “But again, from my perspective, this has to be published today,” I typed. “I’m not willing to wait any longer.”

  At around noon New York time, Janine told me that they had called the NSA and the White House to tell them they were planning on publishing top secret material. But nobody had called them back. The White House that morning had named Susan Rice as its new national security adviser. The Guardian’s national security reporter, Spencer Ackerman, had good contacts in Washington. He told Janine that officials were “preoccupied” with Susan Rice.

  “Right now, they don’t think they need to call us back,” Janine wrote. “They’re going to learn quickly that they need to return my calls.”

  At 3:00 a.m.—3:00 p.m. New York time—I still had not heard anything. Nor had Janine.

  “Do they have any sort of deadline, or is it just whenever they feel like getting back to us?” I asked sarcastically.

  She replied that the Guardian had asked to hear from the NSA “before the end of the day.”

  “What if they don’t respond by then?” I asked.

  “We’ll make our decision then,” she said.

  Janine then added another complicating factor: Alan Rusbridger, her boss, had just boarded a plane from London to New York to oversee publication of the NSA stories. But that meant he would be unavailable for the next seven hours or so.