The Snowden Files: The Inside Story of the World's Most Wanted Man (13 page)

His start date, Monday 3 June 2013, turned out to be exceptionally fortuitous.

Ackerman reported to the sixth floor at 536 Broadway. Compared to, say, the
New York Times
, the
Guardian
US’s SoHo office is small and low-key – an
open-plan room shaped like an inverted L; with some computers, meeting areas and a kitchen containing PG Tips tea, biscuits and a coffee machine. On the wall are black and white portraits by the world-famous
Observer
photographer, Jane Bown. A picture of a young Rupert Murdoch also once hung in the editor’s office; the ironic Rupe was later to disappear to make way for framed
Guardian
front pages of its NSA scoops.

Below is the hubbub of Broadway: boutiques, cafes, tourists. Five minutes’ walk away down Spring Street is Mother’s Ruin, a favoured bar, with a stuccoed cream-coloured ceiling.

Guardian
US is, perhaps, a vision of how media might look once print newspapers have gone the way of the dinosaurs. It is an exclusively digital operation, run with 31 editorial staff and a shoestring $5 million budget. (The
NYT
, by contrast, has 1,150 news-department employees.) About half of its journalists are Americans, mostly young and digitally native. Many have half-sleeve tattoos, one bold soul the full arm. The mission, as Gibson puts it, is to be an entirely US version of the London
Guardian
, offering a dissenting voice about the world.

Since its July 2011 start-up, the US audience had grown. Even so, the Brit interlopers seemed way too low down the Washington food chain to compete with news giants like the
NYT
, the
Post
or the
Wall Street Journal
. (The in-house joke was that at the annual 2012 White House press dinner,
Guardian
US had been allocated just two tickets, next to the toilets and the dumb waiter.)

As the week’s events would dramatically illustrate, not being part of the Washington club had its advantages. Gibson put it frankly: ‘Nobody takes our calls anyway. So we have literally nothing to lose in terms of access.’

The
Guardian
was the third-largest newspaper website in the world, well before Edward Snowden came along. But seemingly the White House had little idea what the title was – a newspaper, a free sheet, a blog? – or about the nature of its innovative British editor, Janine Gibson.

Ackerman never got the ‘orientation’ Gibson promised him. He watched for several hours as Gibson and her Scottish deputy Stuart Millar sat closeted inside her office. The door remained firmly closed. Occasionally she would emerge, heading briskly across the newsroom, before vanishing again behind frosted glass. As Millar, a 41-year-old who moved from London to NYC in 2011, put it: ‘Every time we came out to go to the bathroom or get a glass of water it was like meerkats popping up at desks, nodding to each other and sending out alarm signals.’ Clearly a big story was in the offing.

At lunch, Gibson finally asked Ackerman to join her and Millar: the three walked round the corner to Ed’s Lobster Bar in Lafayette Street. The restaurant was full; the three jammed up against other diners and ordered lobster rolls. Ackerman launched into chit-chat, only for the two Brits to cut him off. The editor then dropped her bombshell. She told him: ‘There is no orientation. We’ve got a good story that we need you to be involved in.’ Gibson laid out what was really going on – a whistleblower, in an unidentified third country. The
whistleblower was working with Greenwald and MacAskill. They were preparing stories on … NSA surveillance. Holy shit!

Ackerman was stunned. ‘I went silent for a little while,’ he says. He adds: ‘I had been reporting on this stuff, on warrantless surveillance programs, for seven years. I got so deep into the weeds on this.’

Gibson briefed him on the PRISM slides, and the secret court order compelling Verizon to hand over the phone records of all of its US customers. Ackerman grasped his head in his hands and began rocking up and down, muttering, ‘Oh fuck! Oh fuck!’ before recovering his composure.

He was excited that his long-held suspicions were correct: the Obama administration was secretly continuing and even expanding Bush-era surveillance practices. Ackerman asked Gibson if the words STELLAR WIND meant anything to her. It did. ‘Birds sang. Butterflies fluttered,’ he recalls dreamily. ‘It was everything I had been trying to find for seven years.’ He went on: ‘I thought this white whale was coming to the tip of my harpoon. It turned out there was a pod of stories.’

The implications were massive. The Verizon secret court order was dated 25 April 2013. It forced one of the US’s largest telecoms providers to hand over to the NSA the telephone records of millions of its US customers. Verizon was passing on private details on an ‘ongoing, daily basis’. It was giving the NSA information on all calls in its systems, both inside the US and between the US and other countries. It was sensational apparent proof
that the NSA was a dragnet collecting the records of millions of US citizens, regardless of whether they had committed any crime or been involved in terrorism.

The document was from the Foreign Intelligence Surveillance Act [FISA] court. Signed by Judge Roger Vinson, it gave the US administration unlimited authority to suck up telephone metadata for a 90-day period. The period ended on 19 July. ‘It was the most exciting thing I have ever seen. No one who is not authorised has seen a FISA court order,’ Ackerman says. ‘In my most fevered and conspiratorial imaginings I didn’t think they [the government] would be doing something like this.’ Was the three-month request a one-off? Were there other similar orders? There was no answer to that. Snowden had provided one recent document. But the suspicion was that the NSA compelled other major mobile phone networks to share their data in the same way.

At the New York office, Gibson drew up a careful plan. It had three basic components: seek legal advice; work out a strategy for approaching the White House; get draft copy from the reporters in Hong Kong. The NSA seemed so far unaware of the tsunami about to engulf it. Ironically, the
Guardian
was itself beginning to operate like a classic intelligence agency – working in secrecy, with compartmentalised cells and furtive encrypted communications. Email and conversations on open lines were out. Gibson wrote a tentative schedule on a whiteboard. (It was later titled ‘The Legend of the Phoenix’, in foot-tapping homage to the summer’s hit by the French electro duo Daft Punk.)

Those with knowledge of the Snowden project were a tiny group, burrowing into the heart of US secrecy. Newspaper people are, by their natures, incorrigible gossips. On this occasion all information was as tightly controlled as in a Leninist cell. Most staff were quite unaware their colleagues were strapping into a journalistic roller-coaster.

The paper intended to publish the Verizon story first. Of all the thousands of documents, these were the most comprehensible. ‘It was unequivocal, crystal-clear,’ Millar says. Next would come a story about the internet project codenamed PRISM. Then the revelation that the US was actively engaged in cyber-warfare. Last, if the paper made it that far, the truth behind a covername, BOUNDLESS INFORMANT.

The task was made fraught by the fact that the journalists working on the scoop were strung across the world – in Hong Kong, in the US, in Britain. Ackerman was sent back to Washington DC. He was told to get ready to contact Verizon. And, when the moment came, to liaise with the White House. In London, Alan Rusbridger, the
Guardian
’s editor-in-chief, headed for the airport with diplomatic editor Julian Borger, for the next available New York flight.

For Janine Gibson, formerly the online editor of
guardian.co.uk
, the paper’s website, this would certainly be a white-knuckle ride. Could a mistake blow everything? There were multiple problems. ‘Nobody had ever seen these documents before. The FISA court documents were so secret there was nothing to compare them with,’
she says. She was wondering uneasily whether the text of the court order was too good to be true – a possible hoax.

One of the biggest problems was the US Espionage Act. The US regulatory regime was looser than its British counterpart. Back at the
Guardian
’s UK base, the British government could simply go for a court injunction – a gag order to stop publication. But even in the US, home of the first amendment, the potential ramifications of publishing super-sensitive classified NSA material were grave. This was the biggest intelligence leak ever.

It seemed highly possible that the US government might seek a subpoena. And assemble a grand jury. The aim would be to force the
Guardian
to disclose the identity of its source. Millar and Gibson met with two leading media lawyers – initially David Korzenick and later David Schulz. The pair helped sketch a way forward.

The Espionage Act was a curious piece of legislation written during the first world war. It made it a crime to ‘furnish, transmit or communicate’ US intelligence material to a foreign government. The statute was rather vague. It was unclear, for example, whether the law did or didn’t apply to journalists who might publish national security items. Case law wasn’t much help, either: there were very few precedents for a prosecution of this kind.

There were some grounds for optimism. First, during its 96 years, the Espionage Act had never been used against a news organisation. It seemed unlikely this administration would want to be the first. Second, the political context was propitious. The White House had found itself at the centre of a firestorm over what
critics said was its repeated persecution of investigative journalists. The Justice Department had obtained telephone records from reporters working for the Associated Press, who had written about a failed al-Qaida plot – an astonishing intrusion into a news-gathering operation. In another leaked inquiry it had targeted a reporter from Fox News. Following an outcry, attorney general Eric Holder told Congress his department would not prosecute journalists for engaging in journalism.

Nonetheless, it was important for the
Guardian
to demonstrate that it was behaving responsibly. The paper had to show it was taking every reasonable step to avoid hurting US national security. And that it published only material which revealed the broad outlines of the government’s surveillance policies, rather than damaging operational details. The test was: does the public have a genuine right to know under the first amendment? The paper’s sole aim was to enable the debate that Snowden and persistent critics in the Senate such as Wyden, and his Senate intelligence committee colleague Mark Udall, had long wanted.

Events were moving at speed. The
Guardian
’s MacAskill had tapped out a four-word text from Hong Kong. It said: ‘The Guinness is good.’ This code phrase meant that he was now convinced Snowden was genuine. Gibson decided to give the NSA a four-hour window to comment, so the agency had an opportunity to disavow it. By British standards the deadline was fair – long enough to make a few calls, agree a line. But viewed from Washington, where journalist–administration relations
were cosy and sometimes resembled a country club, this was nothing short of outrageous even considering briefing spokesmen on complicated material.

In DC on Wednesday, Ackerman’s official first day began in the Washington office. He said hello to his new colleague Dan Roberts, the
Guardian
’s Washington bureau chief, but could disclose nothing of his surreal mission. At around 1pm he put a call in to Verizon. He then rang the White House’s Caitlin Hayden. Hayden was chief spokesperson for the National Security Council (NSC), the powerful body in charge of co-ordinating US national security and foreign policy strategy, chaired by the president. Hayden didn’t pick up.

Ackerman sent an urgent email. It had the subject: ‘need to talk ASAP’:

Hayden was busy. It was, coincidentally, the day the White House announced Ambassador Susan Rice would become Obama’s national security adviser, director of the National Security Council. Hayden emailed to say she would come back to him in an hour. Mid-afternoon, she did call. Ackerman told her what the
Guardian
had
– a secret FISA court document – and what it intended to do – publish it, the same day, at 4.30pm. ‘Caitlin was extremely upset,’ Ackerman says.

After her initial shock, Hayden professionally noted down the details. She promised to ‘take this to her people’. Those people’s mood must have been one of confusion – what precisely was the
Guardian
and where the hell had these pesky Brits got the leak from?

At 4pm, Hayden emailed and said the White House would like him to speak ‘as soon as possible’ to the relevant agencies, the Department of Justice and the NSA. Ackerman called the DoJ and spoke to NSA press officer Judy Emmel. Emmel betrayed no reaction. ‘My heart was racing,’ Ackerman says.

At Gibson’s instruction, Ackerman now emailed Hayden to say his editor had authorised him to push the deadline back ‘until 5.15pm’.

Hayden then called Gibson herself, direct from the White House. She had a proposal – a 5.15pm conference call. The White House was sending in its top guns. The team included FBI deputy director Sean M Joyce, a Boston native with an action-man resumé – investigator against Columbian narcotics, counter-terrorism officer, legal attaché in Prague. Joyce was responsible for the FBI’s 75 overseas and domestic missions fighting crime and threats to national security. He was now the FBI’s lead on intelligence.

Also patched in was Chris Inglis, the NSA’s deputy director. Inglis was a man who interacted with journalists so rarely he was considered by many to be a mythical
entity, like the unicorn. Inglis’s career was illustrious. He had degrees in mechanical engineering and computer science, and had climbed rapidly through the NSA. Before becoming General Alexander’s civilian number two, he was posted between 2003 and 2006 to London as senior US liaison officer (SUSLO), the US’s top-ranking intelligence official liaising with GCHQ and British intelligence. Presumably during his London stint he would have seen the
Guardian
.