For the rest of the journey Greenwald read the latest cache. Sleep was impossible. He was mesmerised: ‘I didn’t take my eyes off the screen for a second. The adrenaline was so extreme.’ From time to time, while the other passengers slumbered, Poitras would come up from her seat in the rear and grin at Greenwald. ‘We would just cackle and giggle like we were schoolchildren. We were screaming, and hugging and dancing with each other up and down,’ he says. ‘I was encouraging her loudness.’ Their celebrations woke some of their neighbours up; they didn’t care.
It had started as a gamble. But now the material was becoming a scoop to end all scoops. What Snowden revealed was looking more and more like a curtain dramatically pulled away to reveal the true nature of things. As the plane came in to land, the crowded lights of Hong Kong twinkling below, there was for the first time a sense of certainty. Greenwald had no more doubts. Snowden was real. His information was real. Everything was real.
4
PUZZLE PALACE
‘That capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.’
The origins of the dragnet surveillance of the world’s internet users can be clearly pinpointed. It started on 9/11, the day of the terrorist atrocities that so frightened and enraged the US. Over the ensuing decade, both in America and Britain, there came a new political willingness to invade individual privacy. At the same time, mushrooming technical developments started to make mass eavesdropping much more feasible.
The intricate web of the internet secretly became what Julian Assange of WikiLeaks was to call, with only some exaggeration, ‘the greatest spying machine the world has ever seen’. But before the appearance of Edward Snowden, very little of the truth about that had reached the surface.
The NSA – the biggest and most secretive of the US intelligence agencies – failed on 9/11 to give advance warning of al-Qaida’s surprise attack against the Twin Towers in New York. Michael Hayden, an obscure air force general, was running the agency at the time.
George Tenet, the CIA director and nominal head of all 16 intelligence agencies, therefore had a question for Hayden. It was really Vice President Dick Cheney’s question, and Tenet was merely the messenger. The query was simple: could Hayden do more? Tenet and Cheney wondered if it was possible for the general to be more aggressive with the NSA’s extraordinary powers to vacuum up vast amounts of electronic communications and telephone information, and turn them against the terrorists.
For five decades, since its founding in 1952, the NSA has accumulated almost mythical technical and mathematical expertise. So much so that in the 1970s, the reformist senator Frank Church had warned that the NSA had the power ‘to make tyranny total in America’.
Its neighbours in Maryland include a number of secret or sensitive US military sites, such as Fort Detrick, the home of the US bioweapons programme, and Edgewood Arsenal, where the US developed chemical weapons. But the NSA was the most secret of the lot. Its budget and personnel are a state secret too.
The NSA’s mission is to collect signals intelligence from around the globe. This means anything electronic: radio, microwave, satellite intercepts. And internet communications. This clandestine monitoring is done without the target finding out. The agency has intercept stations around the world – in US military bases, embassies and elsewhere.
Its capabilities are boosted by a unique intelligence-sharing arrangement dating back to just after the second world war, known as ‘Five Eyes’. Under Five Eyes, the NSA shares its intelligence product with four other Anglophone nations: the UK, Canada, Australia and New Zealand. In theory, these allies don’t spy on each other. In practice, they do.
Legally, the NSA cannot just do as it pleases. The fourth amendment to the US constitution prohibits unreasonable searches and seizures against American citizens. Searches, which include communications intercepts, are only legal against a specific suspect, backed by ‘probable cause’ and the issue of a judicial warrant.
These safeguards are not just irrelevant or antiquarian restrictions. In the 1970s, President Nixon demonstrated how such power could be abused, by ordering the NSA to tap the phones of several fellow Americans he didn’t like, under the notorious MINARET program. The NSA’s illegal domestic targets included some US senators themselves, plus the boxer Muhammad Ali, the writer Benjamin Spock, the actress Jane Fonda, the black activists Whitney Young and Martin Luther King, and other critics of the misbegotten Vietnam war.
The MINARET scandal brought about the Foreign Intelligence Surveillance Act (FISA), a seminal 1978 law. Under it, the NSA was supposed to steer clear of communications inside the US or involving Americans, unless it had a warrant.
Life was easier for the NSA’s smaller UK partners at GCHQ, who faced no written constitution, and who could pressurise government ministers to give them what they wanted under a cosy British blanket of secrecy. Britain’s RIPA (the 2000 Regulation of Investigatory Powers Act) was soon to be ‘interpreted’ to give GCHQ legal carte blanche to carry out mass surveillance on British soil, and pass on the results to the NSA – provided only that one end of a communications link was foreign.
As GCHQ boasted internally, in documents later to be revealed: ‘We have a light oversight regime compared with the US.’
That was certainly true in 2001. Within 72 hours of the devastating 9/11 attacks, Hayden had already taken the agency to the outer limits of its existing legal authorities.
In the midst of the emergency, Hayden secretly allowed his agency to match known terrorist phone numbers with US communications involving international calls. ‘Mission Creep’ rapidly occurred; within two weeks, the NSA was also cleared to give the FBI any US telephone number that contacted any Afghan telephone number. An internal NSA history would later call this ‘a more aggressive use’ of Hayden’s powers than his predecessors tolerated.
And so, under questioning from Cheney and Tenet in 2001, Hayden had to provide an answer that his bosses would find unsatisfying. What more can you do? Nothing. Nothing more can be done within the NSA’s existing authorities.
Later, Tenet asked Hayden a follow-up question over the phone. What could you do if you had more authorities?
As it happened, the NSA could do a tremendous amount.
Prior to the 9/11 attacks, the NSA had already been working on one experiment, which it had had to abandon because of FISA legal constraints. The idea was to perform something called ‘contact chaining’ on the records of communications, or metadata, it received. Contact chaining is a process of establishing connections between senders and recipients and their contacts. Done rigorously, it establishes a map of connections between people that doesn’t involve actually listening to their phone calls or reading the contents of their emails. Long before Facebook ever existed, the NSA was toying with what the social network would later unveil as a ‘social graph’.