Specifically, it codified that the NSA could sieve foreign phone and email communications for information on Americans. Speaking afterwards, Feinstein was unrepentant. She said that the threat from terrorist attacks had never been greater, and added: ‘I think there’s a huge misunderstanding about this NSA database program and how vital I think it is to protecting this country.’
Other senators, however, came up with tougher proposals to rein in the agency. One was Jim Sensenbrenner, chair of the House judiciary committee. Sensenbrenner was the primary author of the Patriot Act, which he devised to ensure American spooks could fight terrorism in the post-9/11 world. Now he said that the Bush and Obama administrations had misinterpreted his legislation – using it to spy on innocent Americans. It was a classic Dr Frankenstein moment, when the scientist realises his creation isn’t the beautiful thing he had wished for, but an out-of-control monster.
By way of corrective, Sensenbrenner introduced a ‘USA Freedom Act’. The act, proposed with Senator Patrick Leahy, envisages major reforms. Among them an end to bulk-collection programs and a new ‘special advocate’ who could represent civil liberties and challenge secret government requests in the FISA court. In essence, Sensenbrenner proposed a return to the targeted model of spying. He asserted: ‘Intelligence professionals should pursue actual leads – not dig through haystacks of our private data.’
Meanwhile, Senators Wyden and Udall, the two critics of the NSA in pre-Snowden times, introduced their own draft legislation to stop warrantless snooping on Americans. Wyden suggested that the Senate should have the power to confirm the NSA’s new director.
In Kremlinological fashion, the White House had let it be known that it favoured a clear-out at the top. Alexander – a four-star general – confirmed his departure from the NSA in March 2014. (The Wall Street Journal, citing a senior US official, said Alexander offered his resignation in June. The White House declined it.) Other officials whispered that it would be a good idea if Clapper moved on at the same time. In theory Clapper was supposed to be conducting the government’s intelligence review. In practice he was a dead man walking, fatally damaged by his false statement before Congress.
The NSA used every opportunity to remind Americans of 9/11 and of its role in keeping America safe. The NSA’s critics pointed out that Angela Merkel wasn’t exactly al-Qaida. In an interview with Der Spiegel, Senator John McCain called for a ‘wholesale housecleaning’ in the US intelligence community, starting from the top. Asked why US spooks had bugged Chancellor Merkel, he offered a concise reply: ‘The reason I think they did it is because they could do it.’
New faces, then, but by 2014 it seemed that the most of the programs exposed by Snowden would carry on. The White House had promised transparency but seemed unwilling to pull the plug on mass surveillance, and its electronic equivalent of Bentham’s panopticon.
According to the New York Times, Obama had reluctantly concluded there was no workable alternative to the bulk collection of metadata, including metadata from Americans. The administration hinted that it might reduce the number of years it keeps this information – from five to three. But this was hardly a concession.
The judiciary, however, took a different view. In December 2013, Richard Leon, a federal judge, delivered a massive legal blow to the NSA. He ruled that the agency’s bulk collection of Americans’ phone records probably violated the US constitution. The program was ‘almost Orwellian’ in its scope, he said, adding ‘The government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack.’ Leon said the constitutional challenge – brought by two plaintiffs – was likely to succeed. There was one crumb of comfort for the government: it was allowed to appeal.
Snowden had achieved the debate he had always wanted, and then some. But in terms of legislative reform it was too early to say whether meaningful change would happen.
In the meantime, hostility towards the leaker from the administration was undimmed. Neither Obama nor Secretary of State John Kerry showed any backtracking in their attitude towards a man whom Kerry dubbed a ‘traitor to his country’. Presidential pardon? Nope. The espionage charges against him still stood. These were unauthorised communication of government property and wilful communication of classified intelligence to an unauthorised person.
Were he to return from Moscow he would face a total of 30 years in jail. Further charges could be added. The death penalty is also available under a section of the act. Despite changing the course of political history by his extraordinary disclosures, it would be a long time before Snowden saw home again.
14
SHOOT THE MESSENGER
‘Please do not make any reference to espionage activity. It is vital that MIRANDA is not aware of the reason for this ports stop.’
It was a Sunday morning in the English countryside, and two middle-aged men were blowing up an inflatable canoe. One was 59-year-old Alan Rusbridger, the editor of the Guardian. The New Yorker magazine describes him thus: ‘He wears square, black-framed glasses and has a mop of dark hair that sprawls across his head and over his ears. He could pass for a librarian.’ Rusbridger’s companion was his friend Henry Porter. Porter, aged 60, writes for Vanity Fair and the Observer; he publishes thrillers and campaigns for civil liberties.
The two journalists were acting out a mildly eccentric boyhood dream – to paddle up the Avon in Warwickshire, savouring the tranquil sights of the riverbank. They set off from Stratford-on-Avon, home of the Bard. They hoped for moorhen, ducks and maybe even a vole. This trip could have come straight from the pages of Scoop, a delicious novel about the press by the English satirist Evelyn Waugh.
Scoop’s journalist hero William Boot pens nature columns for a living. ‘Feather-footed through the plashy fen passes the questing vole’ was one of his more famously memorable lines. When Boot is sent to cover a war in far-off Africa he takes with him an inflatable canoe. (Boot was modelled loosely on Bill Deedes, legendary editor of the Daily Telegraph, who in 1935 arrived to cover the war in Abyssinia with a quarter of a ton of baggage.)
Rusbridger’s canoeing weekend was intended to be a break from the gruelling demands of editorship. It didn’t last. Still on the riverbank, he answered his mobile phone. Police had arrested David Miranda, the 28-year-old partner of Glenn Greenwald, at Heathrow airport! They were holding him under schedule 7 of the UK’s Terrorism Act! They had confiscated his rucksack!
The terrorism law, enacted in 2000, is aimed at killers. It is designed to allow police to stop possible jihadists or IRA members planning bombings, as they enter Britain. It is a draconian piece of legislation: no ‘probable cause’ or specific suspicion is needed. The purpose of the stop is a grave one: to assess whether someone may be involved in the ‘commission, instigation or preparation of acts of terrorism’.