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INTRODUCTION Peace and security are not the natural state of affairs. It is a fact of life that many of those who live comfortable middle-class existences in affluent, liberal, pluralistic democracies in the 21st century, seem to have forgotten. Those who live without a full grasp of the risks and sacrifices taken by others on their behalf will not understand the constant battle for law and freedom against disorder, anarchy and terror. Just as a gardener fights a constant war against untrammelled nature, but casual observers see only order and tranquillity, a constant struggle is being waged against the forces of disruption and destruction so that we can take the safety and security of our daily lives for granted. Our security threats are numerous and they have metamorphosed in recent decades from the subversion of the Cold War, to domestic inspired terrorism and the emergence of transnational threats such as Al Qaeda. They evolve and change constantly. And it is not only our physical security that is threatened. Industrial espionage is endemic. Research and innovation is being targeted. So are our trade secrets and academic research with the result that our intellectual property - our guarantee of future prosperity - is being torn from us by those who seek to weaken as economically or who are frankly, enemies of our states. For our intelligence services to operate effectively, and to protect us from these threats, they need to be able to do things in secret, secrets whose public disclosure would be damaging to our national interests. We depend on the legal and moral partnership of our governments and the employees and contractors it uses to maintain the confidentiality of these secrets. The failure of governmental systems or the wilful malice of individuals can have profound consequences for the efficacy of these arrangements, for the effective maintenance of our security architecture or the safety of our people.
It was here, at the interface between the security agencies and its employees, where Snowden’s betrayal shattered the bond of trust which he owed to his country, its people and its allies. Sir David Omand, the former head of GCHQ, said it was the most catastrophic loss to British intelligence ever and that it was even more damaging than the activities of the Cambridge five, the Soviet spy ring, which included Kim Philby and Guy Burgess. Former National Security Agency and CIA head, Michael Hayden, described Snowden’s actions as “the most serious haemorrhaging of American secrets in the history of American espionage”.
SNOWDEN, THE GUARDIAN AND THEIRCOLLABORATORS There are three separate but related issues relating to the Snowden disclosures; the extent of surveillance by the NSA and whether the level of intrusion was proportionate and legal; the impact of disclosure of the methods of surveillance by the security services; and the effect of the disclosure of the names of operatives and agents. Before examining these, let me set out events from a British perspective. Apart from Snowden himself, the key players were Glenn Greenwald, a writer for the Guardian newspaper and Laura Poitras, a documentary film maker who along with Greenwald is believed to have had access to the intelligence information. David Miranda is the partner of Greenwald. On 18TH August 2013, David Miranda was arrested at Heathrow airport en route to Brazil and materials in his possession were seized pursuant to paragraph 11 of Schedule 7 of the Terrorism Act 2000. Greenwald stated that Miranda had spent the week before his arrest in Berlin with Poitras, who he described as having worked extensively with him on stories relating to NSA surveillance. The initial reaction to Miranda’s arrest from some quarters was that the authorities had overreached themselves, a situation reinforced by some near hysterical reporting,
particularly from left-leaning media. However, within a short time the true picture emerged. Initially, we were told that Miranda was a journalist and that his detention constituted a danger to free press activity. Then it transpired he was not actually a journalist, but was working with the Guardian journalist Glenn Greenwald. Then we discovered that he was acting as a mule, carrying further information to Greenwald on an airline ticket paid by the Guardian. Ryan Chittum, of the Columbia Journalism Review, wrote that Miranda “was serving as a human passenger pigeon, shuttling encrypted files on USB drives between filmmaker Laura Poitras and Greenwald”. The situation was “clarified” by the Guardian editor Alan Rusbridger, who wrote that Greenwald was “regularly helped by David Miranda, who…has a valuable role in helping his partner to do his journalistic work” . He continued that it would be highly advisable for Greenwald, to regard any electronic means of communication as unsafe and thus “the Guardian’s work on the Snowden story has involved many individuals taking a huge number of flights in order to have face-to-face meetings.” Given that we now know that the police found the content of the information being carried by Miranda was sufficient to warrant a criminal investigation, it is reasonable to ask how much such information had been carried and to whom. The external hard drive Miranda was carrying contained approximately 58,000 highly classified UK intelligence documents, consistent with the totality of UK intelligence documents that would have been accessible to Snowden working at the NSA. This was neither targeted nor carefully selected classified material. This was indiscriminately appropriated material in bulk and all, or some of it, was being couriered to Greenwald. Following the arrest of his partner, Miranda, Greenwald actually threatened to do further damage to the United Kingdom when he said “I will be far more aggressive in my reporting from now. I’m going to publish many more documents…… I have many documents on England spy system. I think they will be sorry for what they did”. In other words, if anyone should have the audacity to stop a partner of someone working for the Guardian, then it is fair to compromise the whole country’s security in revenge.
What has become increasingly apparent is that neither Snowden , nor Greenwald had sufficient understanding of the work of the UK security and intelligence agencies to be able to make a reliable judgement on what might, or might not, damage the national security of the UK if put into the public domain. Their toxic mixture of ignorance and arrogance is compounded by basic incompetence in the way in which information has been handled. For example, the New York Times described Greenwald’s handling of material given to him by Snowden, while flying to Hong Kong. It said, “Greenwald began going through its contents…… Poitras, sitting 20 rows behind Greenwald occasionally went forward to talk about what he was reading…… At times, they talked so animatedly that they disturbed passengers who were trying to sleep”. As if this pathetically amateur behaviour was not bad enough, Miranda, when arrested at Heathrow on 18 August, was actually carrying on his person a handwritten piece of paper containing the password for one of the encrypted files recovered from him - more Marx Bros than James Bond, but certainly no laughing matter. As with Miranda and Greenwald, it became apparent to the British government, that the Guardian would not be able to provide adequate assurance in relation to the security arrangements for the material it had received from Snowden. Not least of the considerations was the fact that the Guardian had effectively advertised itself as a target for hostile groups wishing to obtain the underlying data. The British government, therefore, made it clear to the Guardian that they were extremely concerned about their possession of sensitive national security information and that they should not be holding it. The Guardian was informed that the government had no confidence in their ability to keep the material safe nor did they have the capacity to understand the damage that might flow from its further compromise. It was further made clear to them that the information could be targeted by any number of hostile actors and that further damage could be caused to UK counterterrorist operations. Despite these warnings, the Guardian continued to refuse to hand over the data. The destruction of the material, therefore, under supervision, was deemed to be the most practicable option. The reactions of the Guardian to the destruction of the secret material and the intervention of the security services are instructive. The editor of the Guardian, Alan Rusbridger, “Explained to the man from Whitehall about the nature of international collaborations and
the way in which, these days, media organisations could take advantage of the most permissive legal environments”. There was, and is, no sense of understanding, never mind remorse, about what damage might have been done to the security of the country - merely a threat to carry out similar reporting from elsewhere. This attitude is testament not only to the egotism and self importance of the man but the feeling of impunity that both he and Greenwald seemed, and still seem, to exhibit. Many, including myself, believe that the incredibly indulgent way in which the Guardian was treated would not have been replicated if it had been a private individual involved, rather than a newspaper. In this, there are serious questions to be asked about the impartial application of the law (including in relation to terrorism) when it comes to the relations between politicians, civil servants and the media. The weakness in this relationship can be seen by the fact that the government reached a confidential agreement, in good faith with the Guardian about the destruction of the sensitive material. Despite this agreement, the Guardian unilaterally published details of these events on 20 August 2013. Exacerbating matters further, and indicating their contempt for the government’s atte mpts to restrict the damage, they published an article on 23rd August, entitled “Guardian partners with New York Times over Snowden GCHQ files” in which they stated that they had provided a separate copy of the material to a third party in order to get it outside of the U.K.’s jurisdiction. It was for these reasons that I wrote to the Director of Public Prosecutions on 8th November 2013 and subsequently to the Commissioner of the Metropolitan Police on 4th December. In my letter I asked “whether the Guardian either “muled” or electronically transmitted names, or in any other way communicated details, about individuals working for any of the security services to any foreign powers, organisations or individuals outside this jurisdiction, potentially putting at risk the safety of security service employees or their families and in breach of UK law.” And so “I would therefore request that the Metropolitan police investigate whether the activities of the Guardian newspaper or the activities of any individuals working for the Guardian newspaper have breached the country’s anti-terrorist laws, in particular the Terrorism Act 2000, the Terrorism Act 2006 or the Official Secrets Act.”
DISCLOSURE, LIBERTY AND ACCOUNTABILITY If Snowden had limited his disclosures, within the law, to the extent of NSA surveillance and his concerns about the impact on the liberty, as he saw it, of US citizens then it would have been hard to disagree that he was at the centre of a legitimate debate. To have a full and transparent debate about the level of surveillance carried out by the intelligence and security services is a perfectly defensible and useful journalistic function. You do not have to endanger the country to do that. Keeping sensitive information whose disclosure would be damaging to an enemy of our country is not acceptable, and any responsible journalist would either destroy such information or ensure it was handed back to the security services. To go one stage further and actually divulge the details of named individual agents to overseas sources is likely to constitute criminal activity. Most of us are keen to see a free and open press maintained as one of the key counterbalances to the powers of a strong modern state. But if we are to be able to do so, then clear lines must be drawn about what constitutes legitimate debate and oversight and what constitutes irresponsible and potentially criminal behaviour. No one is above the law. That certainly includes our media as well as those who work for our security services. What then are the size and scale of our intelligence agencies that so agitate their critics? In the case of United Kingdom, it is around £2 billion a year. Put another way, this is less than 0.3% of total government expenditure or the equivalent of how much we spend on the National Health Service every 6 days. For the US, the comparable figures are 0.7% of total government spending, around only 5% of the defence budget. Contrary to the critical view that the work of the security and intelligence services compromises freedom, liberty and democracy, the converse is actually the case. They engage those whose sole aim is to threaten their country, the freedom and security of its people and our democratic way of life. In an era in which our enemies are no longer restricted to the boundaries on a map, one in which they could be anywhere in the world behind a computer, the job of the intelligence
service is harder than it’s ever been and constantly getting harder. While the internet provides hitherto unimaginable opportunities for the transfer of information, it comes with an unavoidable dark side. It provides a plethora of outlets for terrorists to communicate covertly. It provides them with a platform to radicalise, recruit and organise. It exposes people to uncensorable violent material which can induce some to commit violent acts themselves. Of course, it would be immensely useful to our objectives if the terrorists and serious criminals used one means of communication and we all used something else. Alas, this is not the case and the internet is rather more akin to a haystack of communication in which the terrorist’s needle can easily hide. It’s also not just terrorist threats that our security services are combating in a vast and fa stmoving online world. They also do a commendable job uncovering those involved in online sexual exploitation of children within our countries, including from overseas. Their role is to break the paedophile ring before they snatch children from their family. Because so much of the lives and activities of our citizens are moving on to the Internet, it is essential that our security services are able to move their too because the threats against them will also be there. One criticism that has been frequently levelled at the activities of the security services is that their decision-making and operational planning is done in secret. This is one of the most ludicrous criticisms of all. The reason that these activities are kept secret is not because our agencies are embarrassed about them or want, intrinsically, to keep them from the public, but because they need to be kept from the terrorists, foreign agents and proliferators who pose the threat. Were such decisions and operations to be carried out in the full glare of the public gaze, then the, sometimes fragile operational advantage will be lost, leaving us all more vulnerable. So, what are the boundaries of surveillance within which our intelligence services are legally allowed to operate? The director of GCHQ told the Intelligence and Security Committee of the House of Commons recently that “We do not spend our time listening to the telephone calls or reading the emails of the vast majority. That would not be proportionate, it would not be
legal. We do not do it…. We can only look at the content of communications, where there are very specific legal thresholds and requirements which have been met …… If you are a terrorist, a serious criminal, a proliferator, a foreign intelligence target or if your activities pose a genuine threat to the national economic security of the United Kingdom, there is a possibility that your communications will be monitored, as in - we will seek to read, we will seek to listen to you. If you are not, and if you are not in contact with one of those people, then you won’t be. We are not entitled to.” There is, of course, considerable oversight of our intelligence services. In the United Kingdom, the Foreign Secretary, appointed by an elected government authorises the operations of GCHQ and SI S. The Home Secretary has the same role in relation to the Security Service. Then there are the two intelligence commissioners – the Interception of Communications Commissioner and the Intelligence Services Commissioner, two former senior judges appointed by the Prime Minister. The founding statutes under which the services operate, too, the Security Service Act and the Intelligence Services Act, are themselves based on the Human Rights Act, Article 8, the right to privacy for the citizen, which can only be transgressed for reasons of national security. In the US there is also rigorous oversight. As the Economist magazine put it, when the question is asked, “who decided that the NSA and a secret court should be trusted to interpret the meaning of the fourth Amendment in a context shielded from either public scrutiny or congressional or judicial oversight? The answer is Congress. The NSA is established and governed by law. It is subject to congressional oversight and judicial scrutiny, and receives instruction from an elected government” In the US, despite all noise generated about the activities of the NSA what has really been established about the legality and oversight of its operations? First, that the collection programs operated have been authorised by all three branches of government. Second, that this authorisation has come with the approval of two presidents from different parties and with two widely divergent political outlooks. And third, not only have there been multiple checks and balances but critics have yet to show any record of agencies
significantly abusing the ability to access information about the American people, far less disproportionate or illegal activity.
EFFECTS ON CRIME AND SECURITY As I have already said, there is a legitimate ongoing debate in America about whether the NSA have breached the Fourth Amendment and in Britain whether GCHQ have infringed on the personal privacy of citizens; but while a huge amount of energy has been devoted to the political debate around surveillance, too little attention, by politicians and the media, has been given to the material threats posed by the Snowden disclosures. The material seized at Heathrow described techniques which have previously been crucial in life-saving counterterrorist operations. According to Britain’s security policy framework, the compromise of SECRET information could, amongst other effects, damage relations with friendly governments; threaten life directly or seriously prejudice public order, or individual security or liberty and cause serious damage to the operational effectiveness of highly valuable security or intelligence operations. Compromise of information classified as TOP SECRET would be likely to have, among its consequences: the threatened internal stability of the UK of friendly countries; to lead directly to widespread loss of life; to cause exceptionally grave damage to the effectiveness or security of the UK or allied forces and to cause severe long-term damage to the UK economy. The British government has had to assume that copies of the Snowden information may now be held by one or more other states, given the pattern of Snowden’s travel since leaving the United States, in particular, the choice of China and Russia as his destinations. To ensure operational success, those who are targeted by our agencies need to be either unaware of our activities or uncertain of our successes. CIA Director John Brennan said of the Snowdon leak, “As a result, we’ve lost critical foreign intelligence collection sources, including some shared with us by valued partners…..Terrorists and other adversaries of this country are going to school on US intelligence sources, methods and tradecraft, and the
insights they are gaining are making our job much, much harder as al Qaeda members need only do some Google searches for what has been disclosed and leaked.” As a result of Snowden’s activities and the information that has now become available to our enemies, we have seen terrorist groups in the Middle East, in Afghanistan and in other parts of south Asia, discussing the revelations in specific terms, including the communication packages that they have used up till now and those that they will move to in the future, now that they know how they have been monitored. We have actually seen chat among specific terrorist groups at home and abroad, discussing how to avoid what they now perceive to be vulnerable communications methods and, consequently, how to select communications which they perceive not to be exploitable. No doubt these terrorist groups are extremely grateful to Snowden and Greenwald and their accomplices for these useful tools in their war against our citizens, our Armed Forces and our way of life. Not only did Snowden show how the NSA intercepts emails, phone calls and radio transmissions of the Taliban in Pakistan but also email intercepts regarding Iran and the global tracking of cell phone calls looking for unknown associates of non-intelligence targets. Not only did he give details of how the NSA hacks into computers and mobile phones in China and Hong Kong to the South China morning Post. Much of this activity was designed to purposely damage American diplomacy and its relations with some of its closest allies, including the United Kingdom and countries such as Norway and Sweden. All this is in line with the virulent anti-Western, and particularly anti-American, views of Snowden, Greenwald and their malicious associates. It remains to be seen just how much damage has been done to the West’s security architecture as a result of the Snowden disclosures, although much of this information would be classified. There has been speculation, however, that the ability to anticipate Russian intentions in relation to Ukraine and the Crimea was diminished as a result of having to close down potentially compromised signal intelligence capability. If true, this would be the first practical demonstration of how Snowden and his acolytes had successfully damaged security to the benefit of Mr Putin’s regime.
EFFECTS ON SECURITY PERSONNEL And what of those brave and patriotic souls who actually carry out the work of our agencies on the front line? According to Oliver Robbins, who advises the UK’s National Security Council on counter terrorism and counter espionage, “Anything that reveals or indicates the identities of members of UK security and intelligence agencies would be of value to elements hostile to the national interest of the United Kingdom, including foreign intelligence agencies and terrorists who actively seek such information.” It is clear that the material seized from Miranda contained personal information that would allow security staff to be identified, including those deployed overseas. This poses serious dangers to staff including a risk to life, both to intelligence officers and their families. It also increases the risk of recruitment attempts, or threats to their safety, by hostile intelligence services or terrorist groups. Did those who made these disclosures, or any of those who assisted them in their efforts, even think, never mind care, about the potential consequences for our personnel? The potential disclosure of personal information relating to security personnel has had a direct impact on decisions taken relating to staff deployments and is therefore already impacting operational effectiveness. In addition, the very high priority that is being placed on the work of understanding and security implications of the Snowden disclosures is diverting resources within the security and intelligence agencies.
CONCLUSION It is not our security agencies who undermine freedom or democracy. It is the terrorists, the criminals and the enemies of our country who seek to do so. What sort of distorted logic suggests that compromising our security agents, potentially putting their lives in danger, is a service to democracy? Our security forces may have to intervene in the privacy of individual citizens when both the safety and security of fellow citizens and even the state itself are threatened. If they do,
they do so within the limitations that are rightly placed upon them by the law in our democracies, and in line with the principles of necessity and proportionality. The director of national intelligence, James Clapper told a Senate committee hearing that “what Snowden has stolen and exposed has gone way, way beyond his professed concerns with so-called domestic surveillance programs. As a result, we’ve lost critical for intelligence collection sources, including some shared with us by valued partners.” The public justification given by Snowden for his actions was “I don’t want to live in a society that does these sort of things (i.e. surveillance of its citizens)…. I do not want to live in a world where everything I do and say is recorded”. So where does he choose to go? In a bizarre and perverse speech he said of America’s intelligence techniques. “They hurt our economy. They hurt our country. They limit our ability to speak and think and live and be creative, to have relationships and to associate freely.” This from a man who is currently snuggled up with Putin’s henchmen. Snowden has not sought to be a martyr for his cause, making his case at home and courting the support of those who applaud his actions. Instead, he has sought solace in the arms of the FSB and the authorities of Russia and in China. This is the Russia that invaded Georgia and illegally annexed Crimea. The Russia where journalists who disagree with the regime disappear, where human rights activists are beaten and where enemies of Putin have fatal accidents or are poisoned on the streets of London by the FSB. Clearly he found this even more to his taste than the internet-blocking, cyber-attacking and increasingly militaristic behaviour of the Chinese state which was his first port of call. Snowdon thinks of himself as a cyber-age guerrilla warrior but in reality, he is a selfpublicising narcissist. He did not find or expose anything illegal, nor did he exhaust all legal and constitutional options to express his reservations about the intelligence and security services. He did not attempt to limit any potential damage in making his point. He did not show that any agency activities were unreasonable in law. Let us not imbue his cowardice with higher motives. Let us not confuse his egotism with public service. Let’s not call his treachery by lesser terms. Let us be clear about the intent and impact of his actions. Let us be clear to the American people and their allies about the threats they now face from
enemies inside and out, terrorist and criminal. For once, let’s say what we mean. Let us call treason by its name.