The Spy Who Tried to Stop a War

by Marcia Mitchell

  ‘I rushed home and began making frantic calls. Around eleven, Yasar rang from the departure lounge of the airport. He was devastated, fully believing the battle was lost, not knowing when we would ever see each other again. It could be years.

  ‘He said he’d asked to call me before he left Cheltenham in the immigration van, but they wouldn’t let him. I wanted to scream, thinking the system unbelievably callous. They at least could have let us say goodbye. I hadn’t seen Yasar since he got out of our car the previous day; we hadn’t hugged or kissed. Was this going to be farewell? We ended the conversation in tears. My heart was in my mouth, why hadn’t word got through yet?

  ‘For the next several hours I was in a state of panic. And then, Yasar called from his mobile! He was on his way to a detention centre in Oxford. An enormous relief – at least he wasn’t on a flight to Turkey. After three days of being held in detention, he was released and given six months’ leave to remain in the United Kingdom. From what I could gather afterwards, Ms Hughes was in direct touch with immigration officials at the airport and told them not to put my husband on the flight.

  ‘From being two ordinary people, newly married, looking forward to a future together, we were now two not-very-ordinary people. I had been very much in the news and was likely to be there for some time to come. Both of us, for different reasons, had been behind bars. We were two young people whose future was, at best, uncertain.’

  CHAPTER 13: The Prosecution and the Defence Prepare for Court

  The defendant admits that she disclosed the email which is the subject of this indictment to another person, and that she did so intending that its contents would be put into the public domain … The defence case is that she was lawfully entitled to make the disclosure.

  – from the Advance Notice of Defence Statement

  She claims ‘the defense of necessity,’ that her leak was required ‘to expose serious wrongdoing on the part of the US government,’ and ‘to prevent an illegal war in which thousands would be killed.’ Her trial will rehash the war’s legality – still a touchy subject, especially since no Iraqi weapons of mass destruction have been found.[1]

  – J. F. O. McAllister

  KEEN ATTENTION NOW focused on the young Englishwoman facing trial on charges of high crime committed in an attempt to stop a war. Ahead of her was the likelihood of years in prison. As preparation for her trial at the historic Old Bailey neared, speculation about what would happen to the attractive young defendant increasingly became the subject of public debate and private discussion. The woman and the crime fascinated an international audience, a drama playing out against the backdrop of an unpopular war. A modern-day Jeanne d’Arc, said some.

  It is safe to say that a great many who watched the legal drama in London felt as did Time writer McAllister, who titled his report, ‘A smoking gun puts the war on trial’. It was not the woman, but the war that belonged in the defendant’s dock. The case was not and had never been about Katharine Gun, but always about the war’s legality.

  Adding to the prevailing rumours and speculation circulating across the country was talk that Crown prosecutors were becoming nervous about Katharine. Press photos pictured a defendant who was annoyingly young and appealing, with the seemingly innocent countenance of a youngster in need of protection – an image that might influence a jury. It was not difficult to believe she was acting solely as a matter of conscience.

  If prosecutors were nervous, Tony Blair and his inner circle must have been as well. In a worst-case scenario, the Crown’s high-powered legal team had only a trial to lose. Downing Street had far more at stake. Against the war from the beginning, the British were living in a climate of increasing displeasure with what was happening and not happening in Iraq. Coalition soldiers were dying, as predicted by the GCHQ translator who tried to stop the war. No weapons of mass destruction had been found, and there was suspicion, more so than in the United States, that they likely did not exist. Debate over allegations that the government had deliberately manipulated intelligence in support of the war had not been put to rest by Lord Hutton’s finding a month earlier that those allegations were unfounded. The ugly word ‘whitewash’ continued to surface.

  In the very worst case for the prime minister, Gun could become a lightning rod for anti-war protests, win or lose. If she were convicted, she could become a martyr of sorts; if freed, she could become a huge source of embarrassment to the government. Further, the very integrity of the Official Secrets Act would be challenged.

  Finally, and most dangerous, was that the upcoming trial would bring even more attention to questions about the war’s legality, questions inevitably leading to speculation about the attorney general’s advice to Blair. Abundant media interest about the case was exacerbating an already politically precarious situation at Downing Street.

  One pithy remark summed up what so many were now thinking, ‘Katharine Gun will not go quietly.’[2] Whatever happened, the political noise could be deafening.

  Although the indictment read The Queen v. Katharine Teresa Gun, Katharine was being prosecuted by the Crown Prosecution Service (CPS) on behalf of the public, not the Queen, and not the government – as is true in all criminal indictments in the United Kingdom.

  To proceed to trial, Katharine’s prosecutors had to be convinced that their case likely was winnable, a level of confidence required by provisions of the Code for Crown Prosecutors. The code mandates an ‘evidential test’ as the first stage in creating that confidence. With regard to the case now receiving so much attention, Katharine’s prosecutors had little difficulty in passing the test – at least at the outset. It specifically states that prosecutors must be satisfied that their evidence will provide a ‘realistic prospect of conviction’. They certainly had that. The burden of proof required was ‘beyond reasonable doubt’ (and there seemed little room for doubt), with a jury expected to try to reach a unanimous verdict. In the unlikely event that unanimity was not possible, the court would accept a verdict agreed by at least ten of the twelve jurors. Winnable? Yes.

  Further, stipulates the code, prosecutors are required to consider what the defence case will be and how it will affect the prosecution’s case. UK law provides that they must do this last bit of legal speculation without benefit of questioning the defendant in advance of prosecution, without ‘precognition’. But prosecutors knew, or thought they knew, everything necessary to defeat her not-guilty plea. On legal balance, the scale seemed weighted in favour of the prosecution. Technically, their case should withstand Katharine’s challenge. Technically.

  Yet another requirement instructs Crown prosecutors to consider whether the evidence can be used and is reliable. Certainly, their evidence was ‘usable’, and certainly it was reliable to the point of being inviolable.

  The second stage in determining whether to prosecute is the public interest test. The CPS will start or continue when the case has passed both tests. The answer was obvious: to bring to justice someone who threatened the security of the nation as blatantly as had Katharine would certainly be in the public interest.

  Thus, while Katharine’s team devoted itself to mounting a ‘defence of necessity/duress’, the prosecution already had the answer to combat that defence, with seemingly every advantage. One, Katharine Gun was covered by the Official Secrets Act; two, she admitted to having committed a crime in violation of that Act. A fatal one-two punch.

  Katharine’s defence of ‘necessity’ was founded on ‘iffy’ and risky grounds. It has a troubled history and is rarely successful. It makes demands that are difficult to prove, a legal rationale difficult to justify. In the case of David Shayler, the defendant lost his final argument.[3] Yet the judge, Lord Woolf, ruled that a defence of necessity might (but only might) be used in extreme cases, such as the imminent protection of lives.[4]

  A seemingly more obvious defence, that Katharine had acted in the public interest, is not permitted under British law – specifically prohibited, in fact, by the Official Se
crets Act as revised in 1989. The OSA now states expressly that there will be no public interest defence. No defendant can claim in court that he or she broke the law in the national interest. Period.

  A defence of necessity, says Liberty solicitor James Welch, goes beyond the concept of public interest. ‘The hurdle is much higher. A person relying on the defence needs to show that he/she acted to avoid serious injury or death to him/herself or others.’ Pleading necessity, a defendant must prove that the single available response to a situation of overwhelming urgency necessitated breaking the law.

  Precedent makes it clear that necessity should be denied as a general defence.[5] Needing an automobile to drive the children to school does not allow a parent to steal a car. Even being hungry is not a defence for hitting the bakery on a dark night. There are other resolutions available in these cases. What is required is the existence of an urgent and profound threat to life for self or others and a reaction to it that is proportionate. Otherwise, legal pundits have observed, anarchy could result, with law and order no longer the rule of civilized society.

  In Katharine’s case, ‘duress’ was included in her defence. The distinction between the two is that necessity applies to circumstances arising naturally, whereas duress applies to circumstances arising from an overpowering human source. Katharine, Liberty held, was entitled to break the law because acts of the US and UK governments posed imminent danger to human lives. Clear enough, but very difficult to prove given that there were, or should have been, other avenues open to her.

  The higher hurdle identified by Welch was in Liberty’s Tabard Street offices as convicted whistle-blower David Shayler was saying four days before Katharine’s Old Bailey appearance, ‘The 1989 Official Secrets Act remains a cancer in the body politic.’[6]

  Following the Crown’s high-profile, failed 1985 OSA case against whistle-blower Clive Ponting, revision of the act in 1989 tightened the original. Civil servant Ponting leaked information about the sinking of the Argentine ship the General Belgrano during the Falklands War. Hundreds of lives were lost in a misadventure because, Ponting claimed, ministers misled the public into thinking the Belgrano was threatening British lives.

  A source considered reliable told the authors that there are still two schools of thought about Ponting, a case some compare to Katharine’s. The Belgrano was, this British citizen says, carrying weapons and was not, as Ponting insisted, innocently sailing away from the battle zone.

  Whatever the truth, Ponting won his case.

  Other OSA losses led to the new, tougher attitude about whistle-blowing in the name of public good, an attitude that buttressed the Crown’s case against Katharine. There have been some notable prosecution successes since enactment of the revision, including jailing of both Shayler and MI6 officer Richard Tomlinson, the first for passing intelligence service information to a journalist and the second for passing secrets to an Australian publisher. For Katharine’s team, Ponting was a cause for hope; Shayler and Tomlinson were a cause for concern.

  Violation of the Official Secrets Act is one of the crimes the CPS takes to the attorney general for concurrence once the decision to prosecute is made. His support was to be expected. Katharine’s crime fitted the revised Official Secrets Act provisions perfectly.

  Despite all that was in their favour, there was that simmering prosecutorial nervousness based on factors other than those that were technical – the war and the woman. However, with knowledge of the game, the rules, and the players, the decision to proceed with plans to try Katharine was holding, or seemed to be. And then a new rumour began to circulate: Perhaps the Crown was changing its mind, was considering dropping the case. There were two questions: Why? And who might be involved in that change of mind or, perhaps, heart?

  It would have been egregiously unethical – and illegal to boot – for a worried Blair government to put pressure on Crown prosecutors to end the whole sorry business at this point. Government has no role in a decision to prosecute, made by the Crown Prosecution Service alone – although, as noted, in certain cases the attorney general must concur. (Blair would make this patently clear the following day.) The reality of independence is significant, and one fiercely protected by the CPS. No ministerial interference, no influence peddling by politicians at any level or of any distinction.

  It is true that director of prosecutions Ken Macdonald, QC, a veteran of twenty-five years of criminal law practice, reports to the attorney general, who is a political appointee of the prime minister. Said Macdonald following his fall 2003 appointment, ‘A transparent, fair and effective prosecuting authority is one of the hallmarks of a great liberal democracy. This is our aim.’[7]

  After Katharine Gun faced her accusers in the Old Bailey, one wonders if there might have been some doubting eyebrows quietly raised about independence and transparency, never mind that both are guaranteed not only by law, but also by process. It may or may not have been a coincidence in timing when, a week after that confrontation, Lord Goldsmith told the House of Lords: ‘My Lords, I want to start by making one thing clear. I want to leave the House and the people of this country in no doubt. I stand for the independence of the Crown Prosecution Service. No one will challenge that while I am Her Majesty’s Attorney-General.’[8]

  Americans understand the concept of independent ‘special’ prosecution in high-level, controversial cases like that of President Bill Clinton. But in the United States, this avenue of dealing with alleged criminal activity is rarely taken and is in response to extraordinary political pressure. In the United Kingdom, it is the only avenue.

  Time was running out. The Queen versus Katharine Gun could be distilled to its essentials: With her confession in hand, CPS prosecutors had all the evidence they needed to prevail in their case against Katharine Gun; with her defence, Katharine had to prove her act met the strict requirements of the law, that it was intended to prevent an illegal war and the loss of lives. That it was necessary.

  As both sides were wrapping up their cases and figuring their odds for success, Katharine’s team concentrated on Blair’s unconvincing assurance that the pre-emptive strike against Iraq was legal, that it was in full accord with international agreements to which the United Kingdom was a signatory.

  It was on 17 March 2003, some two weeks after Katharine’s arrest and the failure of the UNSC second resolution, that Attorney General Lord Goldsmith gave Parliament a brief statement of opinion on the war’s legality. Since that time, the prime minister repeatedly reaffirmed the reliability of Goldsmith’s unequivocal green light to attack. But in the modest confines of Liberty’s offices, as elsewhere in London, there were suspicions about a blinking yellow. Perhaps the 17 March opinion replaced an earlier and more cautious consideration of legal implications involved in a pre-emptive strike.

  Perhaps.

  In Taiwan, Jan Harwood was contacted and asked to prepare two statements for the media – one expressing disappointment over her daughter’s defeat in court, the other expressing joy over her success. It would save time and effort, she was told. She complied.

  At the last minute, at noon the day before what would prove to be a historic confrontation at the Old Bailey, Liberty sent prosecutors an Advance Notice of Defence Statement, with a specific request for certain documents to be supplied by the prosecution, documents that supposedly did not exist.

  It was a brilliant move and one that changed the game – and odds – entirely.

  PART V

  AFTERMATH

  CHAPTER 14: A Historic Collapse at the Old Bailey

  A trial would also have been a forum on the legality of American espionage aimed at influencing the six undecided nations’ votes.[1]

  – Liberty statement, 25 February 2004

  Dropping the charges will avoid severe government embarrassment. There is little doubt that Ms Gun, and her legal advisers, would have been bound to put the legality of military action in Iraq at the very centre of their defence. It is even possible that the full text o
f the attorney general’s advice to the cabinet might have been published at last.

  – Sir Menzies Campbell, upon the collapse of the Gun trial

  THE BOLD, BRILLIANT move conceived at the last minute by Katharine Gun’s Liberty defence team took form in a specific request included in an Advance Notice of Defence Statement to be sent to Crown prosecutors. It would demand that the prosecution disclose ‘any record, memorandum, or legal opinion or advice tending to support the defendant’s honest and reasonable belief that it was (or had been) the view of the UK government that going to war against Iraq without a second UN Security Council resolution would be contrary to international law.’[2]

  Contrary to international law? This was not the official line. The government had claimed all along that war against Iraq without a second UNSC resolution was viewed as legal.

  The statement in its entirety expands upon Katharine’s belief that her country would not enter a war illegally, that it would not join in a conflict against Iraq without that authorizing resolution. Thus, she attempted to stop a war by destroying its potential trigger mechanism: the second resolution that would make war legal.

  ‘She believed the joint negotiating position of the United States and the United Kingdom would be undermined by the disclosure [of the Koza message], because the email revealed the existence of an operation being conducted by the United States National Security Agency, using means which were unlawful and contrary to international law … with a view to manipulating the vote of the UN Security Council on a second resolution.’[3]

  Katharine’s motives, her ‘honest and reasonable beliefs’, had been made public time and again and were nothing new. They were all a part of her defence of ‘necessity/duress of circumstances’. What was new was the very specific request seeking disclosure of unpublished advice on the legality of war without the sanction of a second resolution, an opinion tenaciously held confidential by the prime minister. The implication was that there were conflicting opinions given – one, made public, supporting Blair’s insistence that the war was legal; another, kept secret, raising significant questions about that insistence.