No Place to Hide Page 9

  “Are you able to publish this article without Alan?” If the answer was “no,” then there was no chance the article would be published that day. Alan’s plane wasn’t even scheduled to arrive at JKF until late at night.

  “We’ll see,” she said.

  I felt like I was running into exactly the sort of institutional barriers to doing aggressive reporting that I had joined the Guardian to avoid: Legal worries. Consultation with government officials. Institutional hierarchies. Risk aversion. Delay.

  Moments later, at roughly 3:15 p.m. New York time, Stuart Millar, Janine’s deputy, sent me an instant message: “The government called back. Janine is talking to them now.”

  I waited for what felt like an eternity. Around an hour later, Janine called me and recounted what had happened. There had been close to a dozen senior officials on the phone from numerous agencies, including NSA, DOJ, and the White House. At first they were patronizing but friendly, telling her she didn’t understand the meaning or “context” of the Verizon court order. They wanted to schedule a meeting with her “sometime next week” to meet and explain things.

  When Janine told them she wanted to publish that day, and would do so unless she heard very specific and concrete reasons not to do so, they became more belligerent, even bullying. They told her she was not a “serious journalist” and the Guardian was not a “serious newspaper” because of its refusal to give the government more time to argue in favor of suppressing the story.

  “No normal journalistic outlet would publish this quickly without first meeting with us,” they said, clearly playing for time.

  They’re probably right, I remember thinking. That’s the point. The rules in place allow the government to control and neuter the news-gathering process and eliminate the adversarial relationship between press and government. To me, it was vital for them to know from the start that those corrupting rules were not going to apply in this case. These stories would be released by a different set of rules, one that would define an independent rather than subservient press corps.

  I was encouraged by Janine’s tone: strong and defiant. She stressed that, despite her repeatedly asking, they had failed to provide a single specific way in which national security would be harmed by publication. But she still wouldn’t commit to publishing that day. At the end of the call, she said: “I’m going to see if I can reach Alan, then we’ll decide what to do.”

  I waited for half an hour and then asked her bluntly: “Are we going to publish today or not? That’s all I want to know.”

  She evaded the question. Alan was unreachable. It was clear that she was in an extremely difficult situation: on one side, US officials were bitterly accusing her of recklessness; on the other, she had me making increasingly uncompromising demands. And to top that off, the paper’s top editor was on an airplane, meaning that one of the most difficult and consequential decisions in the paper’s 190-year history had fallen squarely on her shoulders.

  As I stayed online with Janine, I was on the phone the whole time with David. “It’s close to five p.m.,” David argued. “That’s the deadline you gave them. It’s time for a decision. They need to publish now or you need to tell them you quit.”

  He was right, but I was hesitant. Quitting the Guardian right before I published one of the biggest national security leaks in US history would cause a huge media scandal. It would be damaging in the extreme to the Guardian, as I would have to offer some kind of public explanation, which would in turn compel them to defend themselves, probably by attacking me. We’d have a circus on our hands, a huge sideshow that would damage all of us. Worse, it would distract from where the focus should be: on the NSA disclosures.

  I also had to acknowledge my personal fear: publishing hundreds if not thousands of top secret NSA files was going to be risky enough, even as part of a large organization like the Guardian. Doing it alone, without institutional protection, would be far riskier. All the smart warnings from the friends and lawyers I had called played loudly in my head.

  As I hesitated, David said, “You have no choice. If they’re scared to publish, this isn’t the place for you. You can’t operate by fear or you won’t achieve anything. That’s the lesson Snowden just showed you.”

  Together, we composed what I was going to tell Janine in our chat box: “It’s now 5:00 p.m., which was the deadline I gave you. If we don’t publish immediately—in the next thirty minutes—then I hereby terminate my contract with the Guardian.” I almost hit “send,” and then reconsidered. The note was way too much of an explicit threat, a virtual ransom note. If I left the Guardian under those circumstances, everything would be made public, including that line. So I softened the tone: “I understand that you have your concerns and have to do what you feel is right. I’m going to go ahead and now do what I think needs to be done, too. I’m sorry it didn’t work out.” I then hit “send.”

  Within fifteen seconds, the phone rang in my hotel room. It was Janine. “I think you’re being terribly unfair,” she said, clearly distraught. If I left, then the Guardian—which had none of the documents—would lose the entire story.

  “I think you’re the one being unfair,” I replied. “I’ve repeatedly asked you when you intend to publish, and you refuse to give me an answer, just offering coy evasions.”

  “We are going to publish today,” Janine said. “We’re thirty minutes away at most. We’re just making a few final edits, working on headlines, and formatting. It will be up no later than five thirty.”

  “OK. If that’s the plan, then there’s no problem,” I said. “I’m obviously willing to wait thirty minutes.”

  At 5:40 p.m., Janine sent me an instant message with a link, the one I had been waiting to see for days. “It’s live,” she said.

  “NSA Collecting Phone Records of Millions of Verizon Customers Daily,” the headline read, followed by a subhead: “Exclusive: Top Secret Court Order Requiring Verizon to Hand Over All Call Data Shows Scale of Domestic Surveillance Under Obama.”

  That was followed by a link to the full FISA court order. The first three paragraphs of our article told the entire story:

  The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecom providers, under a top secret court order issued in April.

  The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

  The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk—regardless of whether they are suspected of any wrongdoing.

  The impact of the article was instant and enormous, beyond anything I had anticipated. It was the lead story on every national news broadcast that night and dominated political and media discussions. I was inundated with interview requests from virtually every national TV outlet: CNN, MSNBC, NBC, the Today show, Good Morning America, and others. I spent many hours in Hong Kong talking to numerous sympathetic television interviewers—an unusual experience in my career as a political writer often at odds with the establishment press —who all treated the story as a major event and a real scandal.

  In response, the White House spokesman predictably defended the bulk collection program as “a critical tool in protecting the nation from terrorist threats.” The Democratic chairwoman of the Senate Intelligence Committee, Dianne Feinstein, one of the most steadfast congressional supporters of the national security state generally and US surveillance specifically, invoked standard post-9/11 fearmongering by telling reporters that the program was necessary because “people want the homeland kept safe.”

  But almost nobody took those claims seriously. The pro-Obama New York Times editorial page issued a harsh denunciation of the administration. In an editorial entitled “President Obama�
��s Dragnet,” the paper announced: “Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it.” Mocking the administration’s rote invocation of “terrorism” to justify the program, the editorial proclaimed: “the administration has now lost all credibility.” (Generating some controversy, the New York Times, without comment, softened that denunciation several hours after it was first published by adding the phrase “on this issue.”)

  Democratic senator Mark Udall issued a statement saying that “this sort of wide-scale surveillance should concern all of us and is the kind of government overreach I’ve said Americans would find shocking.” The ACLU said that “from a civil liberties perspective, the program could hardly be any more alarming.… It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies.” Former vice president Al Gore took to Twitter, linked to our story, and wrote: “Is it just me, or is blanket surveillance obscenely outrageous?”

  Soon after the story ran, the Associated Press confirmed from an unnamed senator what we had strongly suspected: that the bulk phone record collection program had been going on for years, and was directed at all major US telecom carriers, not just Verizon.

  In the seven years I had been writing and speaking about the NSA, I had never seen any revelation produce anything near this level of interest and passion. There was no time to analyze why it had resonated so powerfully and prompted such a tidal wave of interest and indignation; for the moment, I intended to ride the wave rather than try to understand it.

  When I was finally finished with TV interviews at around noon Hong Kong time, I went directly to Snowden’s hotel room. When I walked in, he had CNN on. Guests were discussing the NSA, expressing shock at the scope of the spying program. Hosts were indignant that this was all being done in secret. Almost every guest they brought on denounced bulk domestic spying.

  “It’s everywhere,” Snowden said, clearly excited. “I watched all your interviews. Everyone seemed to get it.”

  At that moment, I felt a real sense of accomplishment. Snowden’s great fear—that he would throw his life away for revelations nobody would care about—had proved unfounded on the very first day: we had seen not a trace of indifference or apathy. Laura and I had helped him unleash precisely the debate we all believed was urgently necessary—and now I was able to see him watch it all unfold.

  Given Snowden’s plan to out himself after the first week of stories, we both knew that his freedom was likely to come to an end very shortly. For me, the depressing certainty that he would soon be under attack—hunted if not caged as a criminal—hovered over everything we did. It didn’t seem to bother him at all, but it made me determined to vindicate his choice, to maximize the value of the revelations he had risked everything to bring to the world. We were off to a good start, and it was just the beginning.

  “Everyone thinks this is a onetime story, a stand-alone scoop,” Snowden observed. “Nobody knows this is just the very tip of the iceberg, that there’s so much more to come.” He turned to me. “What’s next and when?”

  “PRISM,” I said. “Tomorrow.”

  * * *

  I went back to my hotel room and, despite now approaching a sixth night of sleeplessness, simply could not switch off. The adrenaline was way too potent. At 4:30 p.m., as my only hope of catching some rest, I took a sleeping aid and set the alarm for 7:30 p.m., when I knew Guardian editors in New York would be coming online.

  That day, Janine got online early. We exchanged congratulations and marveled at the reaction to the article. Instantly, it was obvious that the tone of our exchange had changed radically. We had just navigated a significant journalistic challenge together. Janine was proud of the article and I was proud of her resistance to government bullying and her decision to publish the piece. The Guardian had fearlessly, admirably, come through.

  Although it had seemed at the time that there was substantial delay, it was clear in retrospect that the Guardian had moved forward with remarkable speed and boldness: more so, I’m certain, than any news venue of comparable size and stature would have done. And Janine was now clear that the paper had no intention of resting on its laurels. “Alan is insistent that we publish PRISM today,” she said. I, of course, could not have been happier.

  What made the PRISM revelations so important was that the program allowed the NSA to obtain virtually anything it wanted from the Internet companies that hundreds of millions of people around the world now use as their primary means to communicate. This move was made possible by the laws that the US government had implemented in the wake of 9/11, which vested the NSA with sweeping powers to surveil Americans and with virtually unlimited authority to carry out indiscriminate mass surveillance of entire foreign populations.

  The 2008 FISA Amendments Act is the current governing law for NSA surveillance. It was enacted by a bipartisan Congress in the wake of the Bush-era NSA warrantless eavesdropping scandal, and a key result was that it effectively legalized the crux of Bush’s illegal program. As the scandal revealed, Bush had secretly authorized the NSA to eavesdrop on Americans and others within the United States, justifying the order by the need to search for terrorist activity. The order overrode the requirement to obtain the court-approved warrants ordinarily necessary for domestic spying, and resulted in the secret surveillance of at least thousands of people within the United States.

  Despite the outcry that this program was illegal, the 2008 FISA law sought to institutionalize some of the scheme, not end it. The law is based on a distinction between “US persons” (American citizens and those legally on US soil) and all other people. To directly target a US person’s telephone calls or emails, the NSA must still obtain an individual warrant from the FISA court.

  But for all other people, wherever they are, no individual warrant is needed, even if they are communicating with US persons. Under section 702 of the 2008 law, the NSA is merely required once a year to submit to the FISA court its general guidelines for determining that year’s targets—the criteria is merely that the surveillance will “aid legitimate foreign intelligence gathering”—and then receives blanket authorization to proceed. Once the FISA court stamps “approved” on those permits, the NSA is then empowered to target any foreign nationals it wants for surveillance, and can compel telecoms and Internet companies to provide access to all the communications of any non-American, including those with US persons—Facebook chats, Yahoo! emails, Google searches. There is no need to persuade a court that the person is guilty of anything, or even that there is reason to regard the target with suspicion, and there is no need to filter out the US persons who end up surveilled in the process.

  The first order of business was for Guardian editors to advise the government of our intentions to publish the PRISM story. Again, we would give them a deadline of the end of that day, New York time. That ensured they would have a full day to convey any objections, rendering invalid their inevitable complaints that they hadn’t had long enough to respond. But it was equally vital to get comments from the Internet companies that had, according to the NSA documents, provided the agency with direct access to their servers as part of PRISM: Facebook, Google, Apple, YouTube, Skype, and the rest.

  With hours to wait again, I returned to Snowden’s hotel room, where Laura was working with him on various issues. At this point, having crossed a significant threshold—with the publication of the first explosive revelation—Snowden was becoming visibly more vigilant about his security. After I walked in, he put extra pillows against the door. At several points, when he wanted to show me something on his computer, he put a blanket over his head to prevent ceiling cameras from picking up his passwords. When the telephone rang, we all froze: Who could be calling? Snowden picked up, very tentatively, after several rings: the hotel housekeepers, seeing the DO NOT DISTURB sign on his door, were checking to see if he wanted his room cl
eaned. “No thanks,” he said curtly.

  The climate was always tense when we met in Snowden’s room; it only intensified once we began publishing. We had no idea whether the NSA had identified the source of the leak. If they had, did they know where Snowden was? Did Hong Kong or Chinese agents know? There could be a knock on Snowden’s door at any moment that would put an immediate and unpleasant end to our work together.

  In the background, the television was always on, and it seemed someone was always talking about the NSA. After the Verizon story broke, the news programs talked of little beyond “indiscriminate bulk collection” and “local telephone records” and “surveillance abuses.” As we discussed our next stories, Laura and I watched Snowden watching the frenzy he had triggered.

  Then at 2:00 a.m. Hong Kong time, when the PRISM article was about to run, I heard from Janine.

  “Something extremely weird has happened,” she said. “The tech companies vehemently deny what’s in the NSA documents. They insist they’ve never heard of PRISM.”

  We went through the possible explanations for their denials. Perhaps the NSA documents overstated the agency’s capabilities. Perhaps the tech companies were simply lying, or the specific individuals interviewed were unaware of their company’s arrangements with the NSA. Or perhaps PRISM was just an internal NSA code name, never shared with the companies.

  Whatever the explanation, we had to rewrite our story, not just to include the denials but to change the focus to the strange disparity between the NSA documents and the tech companies’ position.

  “Let’s not take a position on who’s right. Let’s just air the disagreement and let them work it out in public,” I proposed. Our intention was that the story would force an open discussion of what the Internet industry had agreed to do with their users’ communications; if their version clashed with the NSA documents, they would need to resolve it with the world watching, which is how it should be.