The Spy Who Tried to Stop a War

by Marcia Mitchell

  Welch did not say what so many were suspecting by now, that this last-minute request forced a last-minute decision. ‘Whether that is what led them to drop the case or not, we can only guess,’ a cautious Welch told the press.

  Welch also raised another significant issue the government was hoping to avoid by ending the Gun case – pressure to revamp the Official Secrets Act. ‘What this case shows,’ he said, ‘is that the Official Secrets Act must be urgently and radically reformed. People like Katharine, who highlight serious wrongdoing on the part of the security services, must not face prosecution and the prospect of prison.’

  Like the young David who faced down a monumental Goliath, other members of the Liberty defence team made observations this day.

  Director Shami Chakrabarti said the decision to charge Katharine had been ‘political in the first place’, adding, ‘One wonders whether disclosure [of the requested documents] in this criminal trial might have been a little too embarrassing.’ And Barry Hugill asked, ‘Why have they waited until today? Why has she been put through eight months of hell?’

  Press coverage of the dismissal of charges against Katharine Gun was phenomenal. Without the splash given elsewhere, even major US newspapers at least covered the story – the Washington Post and the New York Times among them. This, much to the amusement of Observer editor Martin Bright, who, with colleagues, had broken the original NSA story on 2 March the year before, when the US media had turned a blind eye to the bizarre spy case.

  Interviewed by Alison Caldwell for Australia’s ABC, Bright talked about the unusual end of the story.

  ‘We are told that [the case] was dropped because there was insufficient evidence to proceed. It strikes me as rather absurd, considering Katharine Gun had admitted to the leak, which would seem to me to be the only evidence they needed.’ Bright concluded that the issue was not evidence, but the government facing ‘extreme embarrassment’ over the Gun case, particularly with regard to legal advice on the war.

  Foreign Affairs spokesman Sir Menzies Campbell put the end of the case simply and succinctly: ‘This is a government retreat.’

  One of the more widely quoted observations this day came from former spy Shayler, who said that a blanket of secrecy was used to protect intelligence matters that did not affect national security. And, ‘If the intelligence services are going to do things that are illegal, they have to expect people to whistle-blow.’

  The Crown Prosecution Service issued a formal statement immediately following the collapse of its case.[2] The reason for dismissal of charges was ‘that there was no longer a realistic prospect of convicting Katharine Gun’, Despite a ‘clear prima facie breach’ of the OSA as charged, ‘The evidential deficiency related to the prosecution’s inability, within the current statutory framework, to disprove the defence of necessity to be raised on the particular facts of this case.’ Martin Bright’s question comes to mind. She confessed, the evidence was concrete-solid, so what was lacking?

  Most interesting in the document of explanation, which went on to describe the required evidential tests involved, is the following:

  ‘This determination by the prosecution had nothing to do with any advice given by the attorney general to the government in connection with the legality of the war. It was also a determination made by the prosecution in advance of the defence request for disclosure, which came on 24 February 2004.’ Further, it was made clear that the decision was made ‘free from any political interference’. The very fact that these comments prefaced an explanation of evidentiary requirements only raised new questions. Among them, why, if the decision had been made to drop the charges days prior to the defence request on 24 February, had Liberty not been officially notified? Had it been, there would have been no need to continue preparation of its case.

  If matters were uncomfortable for the government on the night of 25 February, they were about to become decidedly worse in very short order. The cause of much of the new setback, meanwhile, was enjoying a stay in Brighton with her husband and family.

  On the morning of 26 February, it was reported that Lord Falconer, the constitutional affairs secretary, and Tessa Jowell, culture secretary, two ‘loyal Blairites’, were seen leaving the Westminster branch of Starbucks coffee shop looking as if the sky had fallen. Those who had listened to British national broadcasting over their own coffees an hour earlier were in a position to understand why the two prominent officials looked so terribly distressed.

  The sky had indeed fallen, and all because MP Clare Short had been asked for her reaction to the Gun case. And, like the bombshell, it fell squarely on Tony Blair, which everyone noticed, and on George Bush, which only a few on his side of the Atlantic noticed.

  MP Clare Short, interviewed on BBC Radio 4’s Today programme, responded candidly to questions about the collapse of the government’s case against Katharine Gun.

  ‘This centres on the attorney general’s advice that war was legal under Resolution 1441,’ Short said. The advice was made public, she explained, but seemed to her to be ‘very, very odd’,

  ‘My own suspicion is that the attorney general has stopped this prosecution because part of Mrs Gun’s defence was to question the legality [of the war]. And that would have brought his advice into the public domain again, and there was something fishy about the way in which he said war was legal.’[3]

  Short added, ‘The tragedy is that Iraq is a disastrous mess. Ten thousand Iraqis have died, American troops are dying, some of our troops have died, and the Middle East is more angry than ever.’ Not wanting to leave doubts about her position, she made it known that she saw government deceit in the run-up to war.[4]

  These words were not the cause of the new uproar over the failed Gun case. Short was asked about the UN spy operation Katharine had revealed. Did the former cabinet minister think that sort of thing really went on within the United Nations? Perhaps even with someone like Secretary General Kofi Annan?

  ‘Yes, absolutely. I read some of the [secret] transcriptions of the accounts of his conversations.’ Here was direct, if unofficial, evidence that the secret service had been spying on the secretary general of the United Nations, clearly a serious breach of international law. ‘Indeed,’ Short continued, ‘I have had conversations with Kofi in the run-up to war thinking, “Oh dear, there will be a transcript of this and people will see what he and I are saying.”’

  Clare Short had just leaked secret intelligence information! In the process, the colourful, controversial member of Parliament had committed a serious crime, boldly and publicly. She violated the Official Secrets Act, just as Katharine Gun had done. She could go to prison, if anyone dared to prosecute her.

  More than a few people hearing this admission assumed that surveillance of Kofi Annan was a part of the same operation conducted by the United States, the United Kingdom, and their surveillance network – the operation exposed by Gun. It was a reasonable assumption. US and UK intelligence agencies work as a single entity at times, even to the point of sharing staff. Katharine Gun, for example, has had personal experience on US secret soil, the nature of which she will not reveal.

  International media jumped on the Short revelation. ‘UN rocked by allegations from former British Minister’ was typical of the headlines written that day. Russia’s UN ambassador, Sergey Lavrov, was interviewed by journalists and told them that, ‘All this needs to be investigated by UN security.’ In a lighter vein, Lavrov said he assumed ‘this shows that the British intelligence services at least are very professional … but it’s illegal’.

  Annan’s reactions were predictable. The secretary general would be disappointed if Short’s allegations were true. Those who speak to him should be able to assume that their exchanges are confidential. An investigation would take place. If they exist, practices like those alleged must be stopped immediately.

  By afternoon Fred Eckhard, Annan’s UN spokesman, faced reporters. The first question asked was whether the ‘practice of bugging the secretary gen
eral is regarded as illegal’.

  Indeed, said Eckhard.[5] He cited three pieces of relevant international law: the 1946 convention on the privileges and immunities of the United Nations, which lays out the rules concerning the inviolable nature of its premises; the 1947 agreement between the United Nations and the United States, which places certain obligations on the United States with regard to the United Nations; and the 1967 Vienna Convention on Diplomatic Relations.

  The exposed NSA operation had already violated all three. Eckhard’s discussion of the laws brought attention back to the earlier revelations and to the woman responsible for them.

  Short’s disclosure could not have come from a higher level. It could not have been more devastating. Short had no doubt that the Koza invitation had been accepted, and she had personal knowledge that even Kofi Annan was not safe from this sort of skulduggery.

  Later that morning, Tony Blair was deluged by reporters’ questions about both Gun and Short. Transcripts of his press conference suggest a charged atmosphere and an uncomfortable session.

  Beginning with Gun, the prime minister made clear that he ‘played no part in the discontinuance of the prosecution’. The deciding factor was a ‘belief that the prosecution could not secure a conviction based on legal and technical reasons’. When someone pointed out that substantial damage could have come from the defence demand for proof of the war’s legality, Blair persisted in saying that he had no involvement in the case. But wasn’t the attorney general a political appointee? Wouldn’t that appointee want to please Mr Blair?

  Nonsense, was the implication.

  ‘If there had been some great political reason for not mounting this case it would have presumably been taken at the very beginning, not half way through it,’ Blair said. This issue, of course, was not the mounting but the dropping of the case. The prime minister told reporters that he had spoken earlier in the morning with the foreign secretary, under whose direction GCHQ operates. ‘The foreign secretary did not, like I didn’t, play any role in the discontinuance of the prosecution.’ It was for evidentiary reasons that the case ended the way it did, in spite, he said, of ‘conspiracy theories that roll around’.

  There was speculation in certain circles that a conspiracy of sorts did exist, that, unlikely as it seems, political pressure had been put on the Crown Prosecution Service to drop the case, independence and transparency aside. The thinking being that if this were the case, pressure exerted would have come from the director of prosecutions, who reports to the politically appointed attorney general. It is obvious that the attorney general was intent on serving the interests of Prime Minister Blair. Whether director of prosecutions Ken Macdonald leaned on prosecutors in some discreet way is a matter of almost delicious – and perhaps reckless – speculation for the conspiracy theorists.

  Questioned about bugging Kofi Annan, the prime minister insisted that his government ‘acted in accordance with domestic and international law’.

  Blair was quickly challenged. Everyone, including Blair, agreed that spying on the secretary general was against international accords. Now, it was known that the United Kingdom (and almost certainly the United States) did precisely that, and yet the prime minister continued to insist that the secret service always acts only in accordance with the law.[6] There was a serious problem here. The press demanded answers. But the prime minister’s response was to accuse the press of ‘playing a game’ with him, a game he refused to join. They were trying to trap him, and he wasn’t about to be trapped. ‘I’m not going to comment on the operations of our security services.’

  Asked if he would support a prosecution of Clare Short for violation of the Official Secrets Act, Blair stumbled somewhat in his response. ‘Well, as you know I don’t – indeed, when we get on to discussing the other thing that happened yesterday [collapse of the Gun case], I don’t deal with who is prosecuted and who is not prosecuted … I will say, however, that I really do regard what Clare Short has said this morning as totally irresponsible.’ Blair’s comment that the government would ‘apply the full rigour of the law’ against people who chose to breach the country’s official secrets seemed to fall flat in the wake of Gun’s escaping punishment and the likelihood that Short would do the same.

  Asked if he considered it irresponsible to expose something his secret services were doing that was ‘improper, something underhanded that the public would disapprove of’, Blair responded that the services ‘understand the legal framework within which they have to exist’. These pesky reporters were playing the game again, and Blair was getting huffy.

  The prime minister commended Short for her work as development secretary, noting that there were many countries around the world grateful to her. But, ‘It is a pity she has done what she has done today, because I think it is wrong.’

  ‘After the collapse of the Katharine Gun case yesterday, isn’t GCHQ going to leak like a sieve in the future?’ someone asked.

  Certainly not. The rest of the secret services staff was not like Gun. There would be no more leaks.

  The issue of the war’s legality as essential to Katharine’s defence kept resurfacing. Blair continued to claim that there should have been no question. The war was in compliance with international law. The attorney general’s opinion was clear and unequivocal. The killer question was one of the last: ‘But did his advice change?’ Essentially, did it change from questionable to unequivocal?

  ‘No, I am sorry, the opposite is true. He counselled specifically that the war was lawful, otherwise we would not have gone to war. So it is absolutely clear what his advice is.’ Here, recorded in the transcript of this day’s press briefing, was the ultimate deception and the heart of the case against Katharine Gun.

  The Sir Walter Scott rhyme (‘Oh what a tangled web we weave’) comes to mind.

  Within two days, 25 and 26 February, Prime Minister Blair’s comfort zone had shrunk substantially. His government failed in trying to put a confessed lawbreaker behind bars. He deplored the action of another lawbreaker, a former cabinet minister, but did not dare to have her prosecuted. His secret service was once again decried for unlawful and embarrassing spying on the United Nations. Difficult questions about the Iraq War’s legality had shoved him into a corner that lacked space for honesty. A very bad two days, indeed.

  It was not over for the prime minister. On 27 February, the Telegraph, noting Short’s disclosure, reported reliable source allegations that UN chief weapons inspector Hans Blix had his mobile phone tapped during his time in Iraq, with details of his recorded conversations shared with Britain and the United States. No mention was made of who did the tapping. It is safe to say that few doubted the claim, and few wondered who was listening to the head of the team searching for Iraqi weapons of mass destruction.[7]

  In Brighton, Katharine Gun, at least partly responsible for Blair’s misery, felt no guilt. She was at peace with her conscience.

  Across the Atlantic, the news that Katharine Gun would go free, the end of the story, had people wondering why they hadn’t heard about the NSA spy operation at the beginning. Perhaps, they reasoned, it was of little import in a grand scale of events dominated by focus on the war – the war President Bush had assured them was just and honourable and the essential battle in a fight against terror.

  Now, a year later, George W. Bush was focusing on a different conflict – what some called ‘the culture war’. Watching the international brouhaha from a safe distance, he had nothing to say about a renewed hostility toward the United States and its illegal spy operation. But he had a great deal to say about domestic issues, particularly gay marriage. Insisting he was ‘protecting the institution of marriage’, he stated his opposition to legalizing homosexual unions. A constitutional amendment might be the answer because ‘the preservation of marriage rises to this level of national importance’. Another issue of national importance at the moment was pending gun control legislation, with the White House busy opposing the addition of gun show and assault
weapons restrictions to a bill shielding firearms makers and dealers from lawsuits.

  The fuming and fussing abroad about an NSA spy fiasco clearly were not a matter of national importance at 1600 Pennsylvania Avenue.

  Fourteen months after the prime minister’s assurance that day of a single, consistent opinion on the war’s legality, the truth was leaked. Information made public by an anonymous source at Whitehall showed that Blair’s response to questions about the attorney general’s opinion had included at best a clever deception and at worst a deliberate lie.

  This new and damning leak revealed that, as Wilmshurst claimed, Lord Goldsmith indeed had changed his opinion about the legality of a pre-emptive strike against Iraq. On 7 March 2003, the attorney general had given Tony Blair a thirteen-page opinion thoroughly supported by Foreign Office international law expertise, an opinion that expressed specific cautions about going to war under the existing sanctions. Ten days later, on 17 March, Lord Goldsmith, in an about-face, had presented a brief, written opinion to Parliament in which all doubt had been eliminated. There was no need for a new UN resolution; the contemplated strike against Iraq would be lawful under Resolution 1441. The first opinion was kept secret; the second, the go-ahead sought by Blair, was made public.

  In his initial opinion, Goldsmith reviewed the three legally acceptable bases for the use of military force against another nation – self-defence, an overwhelming humanitarian catastrophe, and authorization by the United Nations. Meticulously, the attorney general examined all three, noting a lack of clarity, controversy, and ambiguity with regard to the issue at hand – whether the contemplated military action would be in compliance with international law without a new resolution.