The government’s claims of damage were always un-particularised. Without any accompanying detail they were impossible to prove, or disprove.
The novelist John Lanchester – who spent a week trawling through GCHQ’s secret files – cast doubt on whether publishing information on broad surveillance powers really helped al-Qaida. He noted that Osama bin Laden’s compound in Abbottabad didn’t even have a telephone line running into it, let alone email, computers or mobile phones. Clearly the bad guys have known for some time that electronic communications might be intercepted. As Lanchester writes, bin Laden’s lack of electronic footprint was itself dodgy: a sign to the spies that Something Was Up.
Nigel Inkster, the former deputy head of MI6, came to a similar conclusion. ‘I sense that those most interested in the activities of the NSA and GCHQ have not been told much they didn’t already know or could have inferred,’ he said.
But for Britain’s right-wing newspapers the claims by the security agencies were hallowed fact. And an opportunity to smite the Guardian, a paper deeply unpopular on Fleet Street since its revelations of phone hacking. The scandal had brought the prospect of state-backed regulation of the newspaper industry much nearer, something the Sun, Daily Mail and Telegraph bitterly oppose. All ignored the Snowden leaks. It could be charitably argued that it was difficult for rival newspapers without access to the documents to cover the story.
In the wake of Parker’s speech, the Daily Mail led a furious patriotic assault on the Guardian, calling it ‘The paper that helps Britain’s enemies.’ It was, the Mail said, guilty of ‘lethal irresponsibility’. Journalists were incapable of deciding questions of national security, it added, raising the question of what the Mail would have done if it had got hold of the Snowden files. All in all it was a curious abnegation of journalism from a newspaper that in other contexts vigorously asserts the principles of independence and press freedom.
The rest of the world, however, took a different view. Some two dozen respected editors from a range of international titles defended the Guardian, and the role of the press in informing the public and holding those in power to account. Some of the titles – the New York Times, the Washington Post, Der Spiegel – had done their own reporting on the Snowden leaks. Others – such as Haaretz, the Hindu, El Pais – hadn’t. But all acknowledged that the disclosures had stimulated legitimate debate – over the role of spy organisations and the ‘proper perimeters for eavesdropping’, as the Times’s Jill Abramson put it.
For the Germans there were echoes of the ‘Spiegel affair’ of 1963, when the Spiegel’s legendary editor Rudolf Augstein was arrested and jailed for publishing defence leaks. It was a key test for West Germany’s postwar democracy: Augstein was freed and the Bavarian defence minister who imprisoned him, Franz Josef Strauss, resigned. The smashing up of the Guardian’s laptops was front-page news all across Germany.
Siddhartha Varadarajan, the editor of the Hindu, meanwhile remarked that the details of snooping exposed by newspapers are ‘not even remotely related to fighting terrorism’.
He wrote: ‘Osama bin Laden did not need Edward Snowden’s revelations about PRISM to realise the US was listening to every bit of electronic communication: he had already seceded from the world of telephony and reverted to couriers. But millions of people in the US, UK, Brazil, India and elsewhere, including national leaders, energy companies and others who are being spied upon for base reasons, were unaware of the fact that their privacy was being compromised.’
None of this permeated to Downing Street. The prime minister instead chose to shoot the messenger. He dropped ominous hints that charges could follow if the Guardian carried on publishing. In a speech in Brussels, Cameron said that he couldn’t afford to take a ‘la-di-da, airy-fairy’ view of the work of the intelligence services, a dangerous choice of words for an old Etonian. Cameron dodged awkward questions about whether Britain was complicit in the bugging of Angela Merkel’s phone.
A previously obscure Tory MP, Julian Smith, suggested the paper had compromised the identities of British agents (it hadn’t) and ‘stands guilty potentially of treasonous behaviour’. Smith’s campaign would have had more credibility were it not for a gaffe of his own. He hosted a visit to parliament by staff from Menwith Hill, the NSA’s super-secret facility in North Yorkshire in his constituency. Afterwards, Smith, MP for Skipton and Ripon, posed with intelligence staff outside the Gothic building. Smith put the photo on his website. The identities of NSA and GCHQ employees were there for all to see. Smith said they had consented to the picture.
The British strategy was to talk tough on security, while ignoring the more embarrassing revelations of GCHQ spying on friends and allies. In November, the affair spilled from parliamentary committee rooms, bowled along the Thames, and reached the neo-Gothic portals of the Royal Courts of Justice. Court 28, next to the cafe, was the venue for a two-day judicial review. Outside fell a fine London drizzle. Inside the courtroom bewigged barristers leafed through their files. One QC had a book titled Blackstone’s Guide to the Anti-terrorism Legislation; a British flag above a balustraded building adorned its cover.
Lawyers acting for Miranda were challenging the use of schedule 7 powers to detain him over the summer. A coalition of 10 media and free speech organisations supported Miranda. The Brazilian was the claimant; the Home Office and police defendants. Three judges, led by Lord Justice Laws, were hearing the divisional court case.
Matthew Ryder QC set out the facts: Miranda was in transit between Berlin and Rio when counter-terrorism police stopped him at Heathrow. He had been carrying journalistic material. Articles based on this material had revealed previously unknown US–UK government mass surveillance, and had started an ‘international debate’. The authorities had abused Miranda’s right to freedom of expression. Their actions had been disproportionate, wrongly purposed, and incompatible with counter-terrorism law.
The three judges, however, seemed unimpressed with Ryder’s reasoning. Lord Justice Laws interrupted repeatedly. His courteous interventions showed a twinkling intelligence. But it was clear the judge didn’t know a great deal about the internet. The three judges were in their mid or late sixties. When Miranda’s barrister mentioned the NSA’s PRISM program, Laws interjected: ‘It means they [the security services] can’t read the terrorists’ emails!’
Laws also took a dim view of investigative journalism. ‘I don’t really know what is meant by the term “responsible journalist”,’ he mused at one point. ‘It doesn’t make a journalist omniscient in security matters… It’s just rhetoric really.’
The other judges, fellow members of the establishment, had little sympathy with Snowden, or his situation. ‘There must be a quid pro quo about Snowden sitting in Russia. It’s an obvious thought,’ Mr Justice Ouseley chipped in.
‘Why is Russia allowing Snowden to stay? Snowden is in Russia with encrypted stuff. Does it not cross Snowden’s mind that the Russians might want to decrypt it?’ Judge Openshaw said.
It looked an uphill struggle to persuade the judges of the key point behind the case. Greenwald put in a statement saying: ‘The most serious and problematic aspect of the defendants’ response to this claim is their equating of publishing articles based on national security material with acts of terrorism.’