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’:
‘Hi Caitlin,
Just left you a voicemail – on what I *hope* was your voicemail extension. I’m now with the Guardian, and I need to speak with you urgently concerning a story about US surveillance activities. I think it’s best we speak by phone… Please do call as soon as you can.’
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.