The Observer - Beware smoking Guns

While the legal basis for war with Iraq remains a secret, Tony Blair is one leak away from resignation

Nick Cohen Sunday February 29, 2004

Serious journalists like to pretend that we give the public all the news they need to know. The beneficial effects of competition ensure that broadsheets and up-market broadcasters are constantly bringing new products to the news market. What one organisation misses another provides to the fact-bloated consumer. The prosaic reality often falls short of this exalted ideal. Most of the time rivalry between journalists is more apparent than real. Everyone does what everyone else is doing; we cover the same stories and follow up each others' real or bogus exclusives. All that falls outside the loop formed by the media dog chasing its tail is ignored.

But there are occasions when rivalry is taken too seriously. Because, say, the Sunday Times doesn't want to give credit to The Observer, or vice versa, genuine exclusives appear only for... nothing to happen.

Such was the fate of the front-page lead of The Observer of 2 March 2003. We had a sensational document from the US National Security Agency. Its spies were preparing to bug the delegations of countries on the United Nations' Security Council in the run up to the war against Iraq. Calls and emails to and from diplomats' homes and offices were to be intercepted so that the Bush administration would have the 'whole gamut of information that could give US policymakers an edge in obtaining results favourable to US goals or to head off surprises'. The Americans were asking for help from a friendly intelligence agency, which turned out to be the GCHQ eavesdropping centre in Cheltenham. It's one thing to know in theory that governments always spy on each other, quite another to see set out in a memo the detail of how the spying will be done. (Just as it's one thing to know in theory that MI5 has a mole in every newspaper and another to find out that it's your good friend Bloggs sitting on the other side of the desk.)

The story went round the world, causing particular outrage in Chile and Mexico, which were among Washington's targets. News of the intensive Anglo-American spying operation strengthened the waverers determination to vote against the war. No one in British media was interested. Hacks preferred to ignore a corroborated and indeed true accusation against the British Government and chase after an uncorroborated accusation from the BBC which pandered to the deep need of the Government's more credulous opponents to believe the worst about Tony Blair and Alastair Campbell. The indifference lasted until last week when the prosecution of Katharine Gun, the GCHQ officer who leaked the American request for a joint bugging operation, collapsed.

When it deals with political trials, the law can be just as capricious as the press. Most lawyers hate hearing Official Secrets Act cases described as 'political trials'. Political trials were what happened in Saddam's Iraq: there's no place for them in dear, old Blighty. But when a defendant is allowed to tell a jury 'yes, I leaked secrets, but I was right to do so', the argument is a political argument and the decision to acquit or convict a political decision.

After Gun was sacked by GCHQ, the consensus at The Observer and among her lawyers at the civil-rights group, Liberty, was that the Government would never dare take her to court. A concession wrung from the Law Lords by David Shayler, the renegade MI5 officer who was punished for revealing the shambolic state of Britain's intelligence services, made her case explosive.

In most Official Secrets Act trials the judges do all they can to stop public servants arguing that they had a moral duty to expose the Government. If they've let out classified information, they're guilty and can't be allowed to divert the jury with the spurious defence that they were acting in the public interest. But the Law Lords made a small change to the blanket ban. They ruled that if defendants could show they were acting out of necessity or under duress the jury had the right to hear them out. The necessity defence would be allowed when the Government was plotting to put lives at risk by behaving illegally. The concession wasn't any use to poor Shayler, who went to prison. It was only very late in the day - last week, in fact - that the Government realised it was heading towards disaster, and that the defence of necessity was precisely the defence that Katharine Gun could and would run when she was put in the dock.

The reason why many think that Tony Blair remains one leak away from resignation lies in what is known and supposed about the legal advice he received just before the war. Gun's lawyers were determined to get their hands on it. They were going to argue that when she saw a copy of the American memo at GCHQ she made it public because publicity would make the attempt to get a second resolution specifically authorising war harder when Chile, Mexico and the other swing states on the UN Security Council realised what the Americans and British were up to. She believed that without a second resolution the war would be illegal.

The war went ahead without a second resolution because Lord Goldsmith, the Attorney General, told the Government that it was legal in any event. But was it? We know that the deputy head of the Foreign Office's legal team, Elizabeth Wilmshurst, profoundly disagreed with Goldsmith and resigned. Gun's defence team wanted to see copies of all the statements on the war from the Foreign Office's legal adviser, and guessed in advance that they would express serious doubts about the legality of the war. Perhaps Gun's lawyer's might have subpoenaed Elizabeth Wilmshurst, and persuaded her to speak in public, which she has so far refused to do.

Then there was the Attorney General's own advice. As you can see from the news pages, the story of what happened before he declared that war was legal on 17 March last year is still being pieced together. Its outline is already clear. Goldsmith's initial advice on the legality of war was equivocal, far too equivocal for Lord Boyce, the chief of the defence staff at the time. By 17 March, Goldsmith's advice had been firmed up. It was now strong enough to satisfy the generals and persuade dubious Labour MPs to support the Government. What changed his mind? If there is a document in Whitehall which says that he came under political pressure or was somehow manipulated it would be explosive. Gun's lawyers would almost certainly have demanded that all the different legal opinions Goldsmith offered in the run-up to war be disclosed. At the very least, there might have been a huge argument with lawyers, academics and commentators pouring over Goldsmith's reasoning and announcing whether or not they thought war was legal. Blair's attempts to move the country on from the ferocious debates of March 2003 would be foiled. Political life would remain stuck in a time-warp. At worst from the Government's point of view, Blair would be in far greater trouble than during the Hutton inquiry.

You can perhaps see why the Crown Prosecution Service and Goldsmith decided to drop the prosecution. The official reason was that they didn't think they could beat a defence of necessity, and Goldsmith hinted that the law may be returned to its previous draconian state.

I can't see how they could have ever imagined that they were going to get Gun convicted even if the judge ruled out her defence. When the document detailing the spying at the UN arrived at The Observer we didn't have the faintest idea who Katharine Gun was. We didn't know the memo came from GCHQ. We hadn't a clue whether it was genuine or a forgery, and my colleagues Martin Bright and Ed Vulliamy spent the best part of a month establishing its authenticity.

The next thing we heard was that a worker at GCHQ had turned herself in. The rumour went round that she was a Muslim. Oh no, we thought, and not for racist reasons. If a jury is going to acquit a defendant out of sympathy, the character of the defendant is crucial. David Shayler's best friends wouldn't deny that he's a bit of a slob and shouts a lot. His appearance allowed him to be traduced by those who wanted to drown out his revelations that the intelligence agencies failed to understand the dangers of radical Islamic terrorists before 11 September.

Suppose our source was going to appear in court in a headscarf and use the witness box to denounce Britain in a foreign accent, what would the jury make of her? As it turned out, Gun was a defence barrister's dream: well-spoken, well-dressed and manifestly well-intentioned. Jurors might realise that her well-intentioned arguments were morally ambiguous; that stopping the war meant saving Saddam and the death squads, ethnic cleansers, torturers and grave-diggers of a fascist state of the type well-intentioned people opposed long ago in the twentieth century.

But whatever they thought about the war, they couldn't deny that she was a nice young woman that any parent would be proud to call their own. I doubt if the Government could have found a jury in Britain which would have risked allowing the judge to lock her up. The jury would have acquitted her, and its decision wouldn't have been capricious.