The Edward Snowden Affair (34 page)

A controversial law, Schedule 7 applies only to airports, border areas and ports of call. A terror suspect has no right to legal representation and can be held without being charged for up to nine hours.
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Official figures relay that under the law, 97 percent of detainees are held for less than an hour. Only one in 2,000 people are kept for more than six hours.
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The authorities had become wise to the safety precaution Poitras had long since adopted of having a friend, acquaintance or business partner check in and carry delicate information. Miranda’s camera, laptop, DVDs, mobile phone, memory sticks, video game consoles and two watches
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were confiscated. Greenwald had previously stated he held between 15-20,000 classified documents.
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It was later reported Miranda had been in possession of over 58,000 files.
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This followed a series of attempts by the U.S. government to intimidate journalists through challenging and undermining the First Amendment right to source confidentiality. On May 13, 2013, the
Associated Press
(AP) announced five of its reporters and an editor’s telephone records for April and May 2012 had been subpoenaed by the Department of Justice. The requests had been quietly presented to the journalists’ telecommunications providers, not the account holders. Two reporters were Verizon customers. Verizon failed to inform its clients of the subpoenas and did not challenge the orders.
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No other information was provided, but it was noted that the U.S. attorney’s office was investigating a May 7 AP report
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detailing the CIA’s role in foiling Yemeni terrorist Fahd al-Quso’s plot to blow up a commercial flight.
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Gary Pruitt, President of AP, announced there was no security risk because the story had been held until the U.S. government granted permission to print the information.
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The next week and just three days before Snowden would board a flight to Hong Kong,
The Washington
Post broke the story
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of Fox News reporter James Rosen having been tracked and his telephone and email monitored by the Justice Department. The 2010 investigation followed a June 11, 2009, exposé by Rosen which explores how North Korea intended to react to the threat of U.N. sanctions if the communist country were to conduct another nuclear test after completing a successful detonation on May 25.
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It was believed Rosen had gathered his information from Stephen Jin-Woo Kim, a senior analyst at the Office of National Security at Lawrence Livermore National Laboratory.

Two days after the AP report premiered and two days before the Post story debuted, Attorney General Holder testified before Congress that he was not in charge of the inquiry into the AP reporters’ telephone records. He added, “With regard to the potential prosecution of the press for the disclosure of material, that is not something that I’ve ever been involved in, heard of or would think would be a wise policy.”
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His testimony was brought into question six days later when NBC verified Holder had given the Justice Department the green light to investigate Rosen.
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The warrant listed Rosen as a “possible co-conspirator” in violation of the Espionage Act.

Scotland Yard knew the risks involved in detaining the partner of a well-known journalist and attorney. It anticipated
The Guardian
, civil rights groups and the Brazilian government would get involved. It accepted a lawsuit would ensue.
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But intimidation or even knowledge of what Greenwald and Co. had in their possession was not the British government’s primary goal. It was trying to close another security gap.

Few knew that aside from the D-Notice, British authorities had already gone to great lengths to silence the Snowden press.
The Guardian
was content to sit on the information until Scotland Yard attacked one of their own. Two days after Greenwald’s partner was released, the newspaper revealed
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that a month before, on July 20, GCHQ officials accompanied the newspaper’s deputy editor, Paul Johnson; news and media executive director, Sheila Fitzsimons; and computer expert David Blishen to the basement of
The Guardian
’s King’s Cross offices. The officials watched as the three newspaper employees took angle grinders and drills to the hard drives and memory chips containing Snowden’s purloined data.

Five days after the news source reported on GCHQ’s G20 spying, two government officials—Jeremy Heywood, the Cabinet secretary to Prime Minister David Cameron, and Craig Oliver, Cameron’s director of communications
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—darkened the doorway of
The Guardian
’s editor, Alan Rusbridger, shortly after he arrived at work. After a cordial but direct chat, the two officials were satisfied, believing they’d intimidated the staff enough to keep it from releasing more classified information. Hours after the government officials left, the world learned of Tempora’s existence. Cameron’s office held its tongue. More reports appeared. Heywood returned to The Guardian’s headquarters the day after the newspaper revealed Microsoft had granted pre-encryption access to the government. A call from Oliver followed three days later. The officials’ argument was that the sensitive information could be hacked. Rusbridger explained the material had been air gapped (a technique used by Poitras).
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Air gapping involves downloading information to and from a computer which has no Internet connection and is therefore physically isolated from the world. As
The New Yorker
reported, “[ … ] on five white Formica tables sat five new laptops, unconnected to the Internet or to any other network. The trove of documents from Snowden was kept on these computers, in encrypted file containers. Accessing each container required three passwords, and no individual knew more than one.”
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The only possible way for the information to be compromised was for it to be physically stolen. Rusbridger had hired security to guard the Snowden files around the clock.

Rusbridger refused to give in, but then between July 16 and 19, “government pressure intensified, and in a series of phone calls and meetings, the threat of legal action or even a police raid became more explicit.” Oliver Robbins, Britain’s deputy national security adviser, told Rusbridger on July 18 the government would be sending agents to
The Guardian
offices. After he made it clear that copies of the files existed in America and Brazil, Rusbridger submitted, “I preferred to destroy our copy rather than hand it back to them.” He did not want the confiscated material to be used in court if Snowden was apprehended.
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He also feared the authorities would make good on their threats. Rusbridger was not worried for two reasons.

He knew
The Guardian
could continue reporting from its New York base, and long before the computers and recording devices were destroyed, Rusbridger had sent a thumb drive of selected Snowden documents to the United States. The materials eventually reached their destination: the former editor of the
Wall Street Journal
(WSJ) and founding editor of
ProPublica
, Paul Steiger.
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The New York Times
had also been given copies. Snowden consented to the arrangement.
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Representatives from the British Embassy in Washington would later attempt to coerce
The Times
into relinquishing its copies of the Snowden files.
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When the American justice system’s questionable pursuit of its own citizen journalists is placed alongside U.S. intelligence’s predominant role with GCHQ, it is not unreasonable to humor whether the NSA had a silent role in Miranda’s detention and the destruction of
The Guardian
’s hardware, especially considering the agency’s propensity to capitalize upon Britain’s looser national security and press laws. Britain does not offer its press analogous First Amendment rights. What is clear was two of the Five Eyes refused to admit wrongdoing and were willing to go to great and very questionable lengths to keep the press from informing the world about their surveillance methods, policies and practices. The unspoken consequences were clear. Journalism was suddenly viewed as criminal, and under British law, Miranda’s detention meant the press’s efforts were being equated with acts of terrorism.

Perhaps coincidental, the day The Guardian revealed its Snowden cache had been destroyed, the WSJ published, “New Details Show Broader NSA Surveillance Reach.”
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Eleven days before, readers were reassured by the NSA memo the agency only “touches about 1.6 percent” of the information carried by the Internet on a daily basis. It was understood that a very large number of the 1.6 percent is foreign correspondence after carefully monitored minimization procedures, reverence for the Fourth Amendment, and advanced, exacting technology carefully filtered out almost all American communications. Yet the report’s subtitle implies otherwise, “Programs Cover 75% of Nation’s Traffic, Can Snare Emails.”

The
WSJ
relays that the NSA has recourse to surveil the American populace through Blarney, Fairview, Oakstar, Stormbrew and a newly revealed and little known program titled “Lithium.” When met by the assertion U.S. intelligence spies on citizens’ email as well as metadata, NSA spokesperson Vanee Vines replied, “[M]inimization procedures [are used] that are approved by the U.S. attorney general and designed to protect the privacy of United States persons.” The newspaper’s response is surprising.

Whereas
The Guardian
and
The Washington Post
are known for their liberal perspectives and reporting, the WSJ is one of the most conservative newspapers in America. It quickly counters Vines’ claim, “For the 2002 Winter Olympics in Salt Lake City, officials say, the Federal Bureau of Investigation and NSA arranged with Qwest Communications International Inc. to use intercept equipment for a period of less than six months around the time of the event. It monitored the content [my emphasis] of all email and text communications in the Salt Lake City area.”

The WSJ proved the ability for the NSA to spy on Americans’ data as well as metadata had been deliberately used, albeit, in the terms of the White Paper, the “intrusion on privacy interests [was] limited.” Nonetheless, premeditated—and not incidental—violations had taken place.

On August 22, MacAskill returned to present, “NSA paid millions to cover Prism compliance costs for tech companies.”
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It is a historical marker to the recently revealed FISC ruling supposedly barring the NSA from continuing surveillance until it could remedy privacy invasions.

As the court was coming to a decision on whether American intelligence was breaking the law, the NSA’s data providers’ annual “certifications,” which allowed the agency to continue its collaborative surveillance work, were withheld. The Internet providers were nonetheless granted temporary extensions. This forced PRISM participants to incur the costs of maintaining program compliance. A December 2012 newsletter tells the tale but adds that their expenses were ultimately reimbursed by SSO and, by extension, the taxpayer. MacAskill’s report incriminates all participating companies’ claims of ignorance of the program with the possible exception of Apple, which had been inducted into the program the month the court decision was passed. It also brings into question why PRISM providers were expected to meet new certification standards if the court previously ruled that the data relay program was constitutional.

Yahoo acknowledged the disclosure by stating, “We have requested reimbursement consistent with this law” (two years after it took place), and Facebook claimed it had never been reimbursed. MacAskill reports that in lieu of the published evidence, Google still “den[ied] [having] joined Prism or any other surveillance program.” Both Microsoft and Google added in their comments that the firms were still waiting for permission to release their individual FISC orders to the public. Much like Hong Kong’s official statement regarding its decision not to detain Snowden, the companies’ incriminatory, blunt statements complemented by their pithy footnotes reveal they were tired of playing along with the federal government.

However, this is not the most telling portion of the newsletter. It reads, “It is important that these Certifications were renewed [by FISC], because they authorize FAA702 operations until 23 September 2013, even if Congress fails to pass, or delays passage of, a replacement bill for the 2008 FAA legislation which enable all FAA collection.” The announcement adds, “[ … ] the law permits operations to continue as long as the Certifications are in effect.” An ethically dubious practice analogous to Bush’s stopgap which circumvented the FISC’s edict that open wiretapping was illegal, the license to grandfather in legislation grants powers not given by Congress. This means the FISC has the ability to interpret as well as retroactively create law by overriding future legislation. The newsletter ends with the note that the Office of General Counsel intended to appeal the court’s decision if it believed the NSA’s new collection methods failed to meet compliance standards.

Eight days after Gellman exposed the NSA’s deliberate abuses to the world, numerous news sources flocked to the
WSJ
’s “NSA Officers Spy on Love Interests” on August 23.
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The short but brutally condemning exposé put yet another nail in the debate coffin. It does so not by what it states but what it implies.

While discussing with journalists Gellman’s report, NSA Chief Compliance Officer John DeLong let slip during a conference call that willful domestic compliance violations have occurred. The incidences, which are mockingly referred to as “LOVEINT,” involve NSA employees spying on former and current boyfriends, girlfriends and spouses. Most misdirected targeting was self-reported because analysts are contractually obligated to undergo regular polygraph examinations. Some violations were found during audits. Yet there is an incongruity in the story.