The whistleblower, the loose cannon and the case for war

A week that began with extraordinary and embarrassing revelations about British spying at the UN in the run-up to the Iraq war has ended with the far more damaging suspicion that the Government is attempting to withhold evidence that may reveal there was no legal justification for the invasion in the first place. A special report by Foreign Editor Raymond Whitaker and Political Editor Andy McSmith

Katharine Gun and Clare Short have never met. One is 29, the daughter of Christian missionaries still living in Taiwan, with no strong political attachments. The other is twice her age, a lifelong Labour activist who spent six years in the Cabinet as Secretary of State for International Development.

Yet together they have not only blown a huge hole in the Official Secrets Act, but they have also plunged Tony Blair back into a nightmare. Just when the Prime Minister thought that he might be succeeding in his efforts to put the Iraq war behind him and refocus the political debate on domestic issues such as the revival of a "Thatcherite" Conservative Party threatening huge public spending cuts, all the unanswered questions about the war have resurfaced.

When did Mr Blair agree to join President George Bush's crusade to oust Saddam Hussein? Was Britain's participation in the war legal? And is it possible to justify the tactics employed in the run-up to the war, from the use of intelligence about Iraq's alleged weapons of mass destruction to claims that friends and allies were spied upon?

Mr Blair has been here before, of course. Only a month ago Lord Hutton's report appeared to exonerate the Government entirely of the charge of "sexing up" its September 2002 dossier on Iraqi WMD, only for the report to be seen as so one-sided that it actually hurt the Government. That was followed by further uncomfortable revelations about the notorious claim that Iraq could deploy chemical and biological weapons within 45 minutes, the issue over which No 10 and the BBC fought themselves to a standstill.

Yet by the beginning of last week it must have seemed to the Prime Minister that Iraq was at last receding, not so much into the background, but to the point where it was possible to discuss other questions without it seeming like an attempted diversion. His staff were delighted when they got through the usual Monday morning lobby briefing without a single question on Iraq, possibly for the first time in more than a year.

Mr Blair would have known that the legal authorities were about to drop their case against Ms Gun, charged with breaking the Official Secrets Act by leaking an email from the National Security Agency in the US, which asked Britain to help to spy on other countries' diplomats at the United Nations. He was aware that on Thursday morning, when he was due to hold his monthly televised press conference at Downing Street, the papers would be full of the collapse of the Gun case at the Old Bailey the previous day.

But he would have his answers ready, and the prospect of a few difficult questions was a lot better than a drawn-out hearing during which Ms Gun's lawyers, with maximum publicity, would question the Government's entire legal basis for the war. The plan was to get the matter out of the way as swiftly as possible and move on to a more palatable topic, a new aid initiative for Africa. The Prime Minister had not bargained, however, on Ms Short.

Mr Blair, not surprisingly, did not have his ear to the radio when Clare Short made her live appearance on the Today programme, just after 8.10am on Thursday, but staff in the Downing Street press office did. Within minutes, the Prime Minister's director of communications, David Hill, was on the line, delivering the bad news.

Ms Short was invited on to the Today programme to discuss the decision not to prosecute Ms Gun. In the middle of an answer about the events of early 2003, she mentioned almost casually: "The UK in this time was also spying on Kofi Annan's office, and getting reports from him about what was going on."

The sentence hung in the air for a moment until her interviewer, John Humphrys, returned to the subject, suggesting that spying on the UN was an odd thing to do. "These things are done, and in the case of Kofi's office it has been done for some time," she replied.

Asked whether she believed that Britain was involved in this spying, she replied: "Well, I know. I have seen transcripts of Kofi Annan's conversations. In fact, 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'." She was asked, again, whether British spies had been carrying out operations in the UN on people like Mr Annan. "Yes, absolutely," she said, adding: "I read some of the transcripts of the accounts of his conversations."

We do not know what the Prime Minister's immediate reaction was, but it is very likely that he or one of his staff will have immediately picked up the telephone to ring John Scarlett, the chairman of the Joint Intelligence Committee, and Sir Richard Dearlove, head of MI6. We know that when the 45-minute claim was attacked in the famous broadcast by Andrew Gilligan on the Today programme last May, Mr Blair's first reaction was to clear his lines with the intelligence chiefs.

It is probable that what he heard from the intelligence chiefs this time was not altogether helpful to the Prime Minister. He had to go and face searching questions in front of the cameras in a couple of hours. They almost certainly told him that they did not want him to make any public comment on the activities of intelligence agencies, whether British or American, because of the precedent it would set.

Those who watched the Prime Minister's public performance noticed how confident and clear he was in handling questions about the collapse of Ms Gun's trial - and how awkward he looked when discussing Ms Short. He could not say whether his former colleague's claims were true or false, falling back on the convoluted statement: "I'm not going to comment on the work that our security services do, [but] don't take that as an indication that the allegations that were made by Clare Short are true. Simply understand, I am not going to comment on the operations of our security services."

Then, having denounced Ms Short for being "totally irresponsible", he was wrongfooted by a question from the Daily Express: "Have you only just woken up to the nature of Clare Short, and what does it say about your own judgement that you could allow someone like that in the Cabinet?"

The furore over Ms Short's allegations, which went round the world, had scarcely anything to do with the issue in Ms Gun's trial, and arguably distracted attention from it. This might have been a help to Mr Blair, but for one fact. Both the leak for which Ms Gun was charged, and the spying claims of Ms Short, concerned a period the Prime Minister would prefer to forget: the fraught weeks in late 2002 and early 2003 as we headed for war with Iraq.

By mid-October 2002, President Bush had an open mandate from both houses of Congress to go to war with Iraq. The attacks on New York and Washington were only just over a year in the past, and the White House had used the time in between to convince the American public that Saddam Hussein was somehow linked to them. With mid-term elections due the following month, few Democrats wished to seem unpatriotic by voting against the President, something which is now coming to haunt Senator John Kerry, the Democratic front-runner in this year's Presidential race.

The threat of force from the US was in the background as the UN Security Council passed Resolution 1441 on 8 November, warning of "serious consequences" if Iraq did not take a "final opportunity to comply with its disarmament obligations". As far as Washington was concerned, that would mean war. In London, however, things were different.

The Attorney General, Lord Goldsmith, was advising, as was the Foreign Office, that another UN Security Council resolution would be required for war to be legal. Tony Blair said of Resolution 1441: "In the event of Saddam refusing to co-operate or being in breach, there will be a further UN discussion." It seemed clear that Britain would have trouble going to war unless the Security Council specifically mandated the use of force.

By the start of 2003, however, the pressure from Washington to go to war was mounting by the day. It was all Mr Blair could do to persuade a sceptical Bush administration to seek a second UN resolution. From the American point of view it was always understood that the whole UN effort was a favour to George Bush's closest ally.

Lord Goldsmith, meanwhile, was confronted by the concerns of Britain's military chiefs of staff, who were arguing that they needed a clear legal basis for committing British troops to a new kind of pre-emptive war, in which it was far from clear that Britain itself was under imminent threat. The only other grounds for war permitted by the UN Charter is an explicit authorisation of force by the Security Council.

It is understood that Lord Goldsmith and his staff produced a paper addressing this question, but the military chiefs said its careful balance of arguments did not meet their need for legal clarity. With a new UN resolution looking hard to achieve, it was about this time that the Attorney General began searching through earlier resolutions for a justification for war.

But the all-out diplomatic effort in New York continued, and on 31 January Ms Gun, a translator of Chinese at GCHQ, the government's communications monitoring organisation in Cheltenham, came across an email from Frank Koza, a senior official of the National Security Agency, GCHQ's (much bigger) equivalent in the US. It sought British help in spying on the UN delegations of six nations which were temporary members of the Security Council. Their votes were seen as potentially making the difference between success or failure for a second resolution.

Whether Britain complied with the request or not is unknown, but the email found its way to a Sunday newspaper after Ms Gun showed it to a friend with journalistic contacts. Once it was published, she immediately confessed her part and acknowledged having breached the Official Secrets Act. Why the Government dropped its case against her, therefore, can be explained only by looking at her planned defence, which was that the war was illegal. The only way this could have been countered was by making public Lord Goldsmith's final opinion, the one on which Britain went to war.

Last week Lord Goldsmith said he had decided to drop the case before Ms Gun's lawyers presented a document outlining their strategy. But Barry Hugill, spokesman for Liberty, the civil rights organisation backing Ms Gun, said it had been "obvious for months that it would become a trial of the legality of the war".

According to Ms Short, not even the Cabinet was allowed to see the Attorney General's legal opinion. On 17 March last year, with less than 72 hours before the bombs began falling on Baghdad, she says a document consisting of two sheets of paper was displayed, but not circulated. When she tried to initiate a discussion on it, she was cut off.

At this point Elizabeth Wilmshurst, a member of the Foreign Office's legal team for nearly 30 years, abruptly resigned as deputy legal adviser. With war imminent, her departure attracted little attention at the time, but it now seems clear that she at least had seen the Attorney General's full opinion, and found it unacceptable. Last week, as speculation mounted, she spelled it out, saying: "I left my job because I did not agree that the use of force against Iraq was lawful."

All that the rest of us know, from Lord Goldsmith's brief summary, is that he is relying on a 12-year-old Security Council resolution which authorised the use of force to expel Iraqi forces from Kuwait in 1991. How he justifies such a seemingly thin argument remains a secret, one guarded by the claim that there is no precedent for publishing legal opinions drawn up for the Government.

But other cases are pending, including those of 14 Greenpeace supporters who occupied tanks at a Southampton military base in February last year, and five peace activists charged with criminal damage at RAF Fairford. Their lawyers are expected to demand the full opinion as well.

The only legal step Downing Street is contemplating in the wake of the Katharine Gun fiasco is a review of the Official Secrets Act, which would appear to be all the more urgent following Clare Short's trampling of the same law. But a spokesman shed little light, describing the review as "the normal process that you go through after the outcome of a case", and said that it would be carried out "by the normal people in the normal way". One possibility is that government lawyers will try to write into the act a precise definition of the concept of "necessity" which cropped up during the case of the former MI5 agent David Shayler, who was jailed for selling information to a Sunday newspaper.

When Mr Shayler appealed to the House of Lords, Lord Woolf raised the possibility that a defendant might be acquitted of a breach of the Act if he could show that he had revealed secrets in order to avert a threat to human life, before dismissing this possibility in Mr Shayler's case.

Ms Gun's lawyers intended to argue that she was seeking to save lives by exposing skulduggery at the UN which could lead to war, and the Attorney General decided that the prosecution could not answer that claim. This might be seen, absurdly, to give immunity to anyone who wants to leak secrets in the run-up to a war.

In some ways the uproar over spying at the UN, though highly embarrassing for the Government, is easier to deal with by stonewalling: nobody seriously expects any government to confirm that it is eavesdropping on its supposed friends and allies, even though everyone knows it goes on.

Even anti-war MPs on the left wing of the Labour Party, who refused to join in the condemnation of Clare Short, were saying yesterday that whether or not British agents spied on Kofi Annan was not the political issue of the moment. "All of this is a massive distraction," said Alan Simpson, chairman of the left-wing Campaign Group. "I don't think we should be surprised at bugging operations. When you talked to UN officials, they presumed they were being bugged.

"The issue is not about Clare's loyalty or disloyalty. It's about this assumed, untrammelled right of the Bush administration to go to war. The obsession was not about whether Saddam posed a threat to the West, but about whether the UN posed a threat to America's determination to have a war."

Experts say that electronic eavesdropping is an accepted, if rarely acknowledged, part of life at the UN and one of the reasons why the US was so willing to allow the body to establish its headquarters in New York in April 1945 - a move that gave America a head start in its spying efforts.

Indeed, in the aftermath of Ms Short's allegations diplomats said it was almost a matter of pride to be spied on. Spain's ambassador to the UN, Inocencio Arias, told The Washington Post: "In my opinion everybody spies on everybody, and when there's a crisis, big countries spy a lot. I would not be surprised if this Secretary-General and other Secretary-Generals have been listened to by a handful of big powers, and not only the ones you are thinking."

No wire-tapping is allowed on UN premises. Three treaties are supposed to ensure the protection of the UN from spying, and yet experts say that among diplomats it is a given that spying takes place. Under an agreement by the so-called Spoke countries - the US, UK, Canada, Australia and New Zealand - spying on US territory is carried out by America's National Security Agency and then shared.

Jim Atkinson is an expert in electronic surveillance and is regularly contracted by countries and private companies to sweep buildings for bugs and provide protection against electronic eavesdropping. He told an astonishing story about spying at the UN. Travelling between jobs in New York in his mobile laboratory - one of a number of vehicles fitted with detectors and anti-bug equipment - he recently made several passes of the UN headquarters. The equipment in his vehicle was deliberately left on. "The equipment immediately started logging on to bugs that had the frequencies of [bugging equipment routinely used by] various countries," he said. "I can even pick out specific bugs in specific offices."

Mr Atkinson declined to identify the countries whose equipment he detected that day, but he said: "Britain and America do this stuff all the time. They have scores of people who do this ... they do it to everybody. Everybody does it to them. Everybody in the diplomatic community does not trust anybody else." He claimed that in addition to Britain and America, he expected that Iraq would have bugged Mr Annan's office, and that Saudi Arabia and Israel would also have been electronically eavesdropping.

The Prime Minister's phrase of the moment is that he wants to "move on", which means that he would like the public to forget the Iraq war and pay attention to political questions such as the sharply focused differences between Labour and the Conservatives.

Yet thanks to three women - Katharine Gun, Clare Short and Elizabeth Wilmshurst - Mr Blair has spent another week on the back foot. Comment from around the world on the former minister's sensational revelations emphasised that the Prime Minister still suffers lingering damage to his reputation from the Iraq war. Whether he can answer the questions which remain from that conflict, and dispel the clouds of mistrust that remain, is likely to determine how his premiership is judged.

Tony Blair: Trapped in the Iraq storm

The Prime Minister's phrase of the moment is that he wants to "move on", which means he would like the public to forget the Iraq war. At the start of the week, Mr Blair really thought he was getting somewhere. Interest in Iraq seemed to be fading at last. The decision not to prosecute Katharine Gun took away the possibility of a long, highly publicised trial. He had an announcement about aid to Africa at the ready for his monthly Downing Street press conference on Thursday, and on Friday he would be delivering a speech on domestic politics to the Scottish Labour Party conference. Then Clare Short's sensational revelations ruined his week, leaving his advisers wondering if he will everrid himself of this feisty Labour rebel, or repair the damage the Iraq war has done to his reputation.

Lord Goldsmith: Little-known lawyer thrust into the front line after 9/11

It is possible to serve for years as Attorney General without making the news. Even the average lawyer would struggle to recall who occupied the post as recently as five years ago. The answer is that it was held for the first two years of the Blair government by the veteran MP John Morris, and for the next two years by Gareth Williams before he became Leader of the House of Lords.

Peter Goldsmith, who took over the post after the 2001 election, is an experienced lawyer but a virtual unknown in the political world. Yet since his appointment, he has been involved in one political controversy after another, most of them arising from the 11 September attacks. He has negotiated on behalf of Britons detained in Guantanamo Bay; warned David Blunkett that lowering the standard of proof required to convict suspected terrorists could be a breach of the law; and - most controversially - was asked for a judgement on the legality of the Iraq war. Why the full text of that judgement has to be kept secret is now a hot political issue. Similar judgments have been made public, although there was a famous case in 1986 when the then Trade and Industry Secretary, Leon Brittan, had to resign after ordering the leak of an Attorney General's letter.

Clare Short: Former minister who fell out with her colleagues

Clare Short was never a politician to hold back or speak softly. She is also impulsive, and has made enemies where her friends ought to be, on the left wing of the Labour Party. They have not entirely forgiven her for staying in the Cabinet during the Iraq war, only to resign afterwards. Those with longer memories recall her part in expelling or disciplining members of the left in the 1990s.

Having entered the Commons at the same time as Tony Blair, in 1983, Ms Short served for years on the National Executive Committee, the body that may yet bring her to book for her outspokenness. She held the post of International Development Secretary for six years, and was generally thought to have run her department well. Now she has aroused the anger of the party leadership like no other former minister.

Andy McSmith

Katharine Gun: Translator who had to follow her conscience

A fluent Mandarin speaker and daughter of an English literature professor, Katharine Gun was a low-level translator for GCHQ, the government's top-secret eavesdropping centre in Cheltenham, Gloucestershire.

But last March, she leaked the now infamous memo from a very senior US intelligence official at the National Security Agency, asking for British help to bug delegates of six countries at the United Nations.

Sacked from GCHQ in June 2003, she has always admitted disclosing the email, written by the NSA's Defence Chief of Staff (Regional Targets), Frank Koza. But she has insisted she had "only ever followed her conscience" to prevent an "illegal war against Iraq". Ms Gun, aged 29 and married to a Turk, learnt Mandarin as she grew up in Taiwan where her father, Paul Harwood, teaches at Tunghai University.

After moving to Eastbourne, East Sussex, to study for her A-levels, Ms Gun went on to read modern Chinese with Japanese at Durham University where she was described as a capable, "lively" student who would always speak out if she had something to say.

Professor Harwood and Ms Gun's mother, Jan Harwood, have declared that they were "deeply proud" of their daughter's decision to breach the Official Secrets Act.

Elizabeth Wilmshurst: FO specialist believed that the war was illegal

The former deputy legal adviser to the Foreign Secretary, who resigned over the legality of the Iraq war last year, Elizabeth Wilmshurst is seen as one of Britain's leading experts on international criminal and diplomatic law.

While little known outside diplomatic and legal circles, Ms Wilmshurst spent 29 years in the Foreign and Commonwealth Office legal department before becoming deputy head of legal affairs in 1997.

Ms Wilmshurst is now head of the international law programme at the Royal Institute of International Affairs in London and a visiting professor at University College London. In 1998 she was made a Companion of St Michael and St George, one of the highest honours for diplomats.

She had resigned her post in March last year because she believed the Iraq war was illegal - a view many Foreign Office experts are said to share.

Before resigning, Ms Wilmshurst had led the UK delegation to set up the International Criminal Court (ICC) in The Hague, served as legal counsellor to the UK's mission to the UN, and given evidence for the Foreign Office to the House of Commons International Development Committee on the legality of sanctions. She played a controversial role in the setting-up of the ICC, when, as a Foreign Office negotiator, she supported a US attempt to block the court from prosecuting US citizens. Despite this, she is now an adviser to the ICC.

There was speculation that Ms Wilmshurst might have appeared as a witness for Katharine Gun, the former GCHQ translator whose trial for leaking an email concerning a UK-US spying operation collapsed last week.

Ironically, Ms Wilmshurst was due to have co-chaired with Clare Short a conference on the US-UK occupation of Iraq at the British Institute of International and Comparative Law last Thursday - the day Ms Short revealed Britain's bugging of the UN.

Severin Carrell

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