Andreas Whittam Smith: Secrets, lies and war crimes

The Official Secrets Act is being used to protect the Government from its critics

Tomorrow at the Magistrates Court in Bow Street, central London, a case that could seriously damage the standing of President Bush as well as his relationship with the Prime Minister, Mr Blair, will begin its journey. Charges under the Official Secrets Act, 1989 will be brought against David Keogh, a suspended Foreign Office official seconded to the Cabinet Office, and Leo O'Connor, a former researcher for Tony Clarke, an anti-war MP at the time of the alleged offences.

At the centre of the case is the note of a meeting last April between President Bush and Mr Blair leaked to Mr Clarke. From what has been learnt from diligent newspaper enquiries, starting with the Daily Mirror, we can be reasonably sure that the subjects discussed covered the American assault on Fallujah in Iraq, under way at the time, and the vivid coverage of the fighting that was broadcast by the Arab satellite television station al-Jazeera. The television pictures had infuriated American generals.

Whether Mr Bush did indeed state that the US was planning to attack al-Jazeera's headquarters in Doha, the capital of Qatar, is not yet wholly clear. The claim by British officials that the President was merely joking at least confirms that the President said something like it. But official note takers don't normally record jokes. Indeed when people in minuted meetings knowingly make improper remarks, they usually ask that the passages be left out of the record.

Moreover, the American government has form in this matter. A year earlier, a US plane had fired a missile into the al-Jazeera offices in Baghdad. The same happened in Kabul in 2001. And in 1998, the US bombed Serbia's television headquarters in Belgrade. I believe it is overwhelmingly likely, therefore, that Mr Bush did seriously discuss taking out al-Jazeera.

That would have been a war crime. Because, first of all, Qatar is a small Gulf state friendly to the West. It is not fighting anybody. It is not threatening anybody. Because, secondly, al-Jazeera is the only reliable source of news in the Middle East. It has a particular audience whose interests and concerns it covers. Naturally these are not the same as Western interests and concerns. But in doing its job it is neither more nor less biased than the BBC or The New York Times. It is thus an essential component of democracy. And because, thirdly, the staff of al-Jazeera who would have been killed had Mr Bush pressed the button are civilians. They are not, or should not be, targets.

That is why notes of a meeting showing that the President of the United States of America was contemplating such a thing have to be removed from the public gaze by its faithful ally, Britain, at whatever cost. But it is an open question whether prosecuting the alleged leaker and the alleged recipient as well as threatening newspapers with charges under the act, as the Attorney General Lord Goldsmith has done, will have the desired result.

The Official Secrets Act 1989 does not protect information useful to an enemy. That is covered in section 1 of the 1911 Act. The later measure is solely concerned with maintaining the confidentiality of government business. Or, as it appears in the present case, with protecting the Government from its critics.

The key test of whether a crime has been committed is whether the disclosure is damaging. It is not a defence to say that the disclosure was in the public interest. Motivation is not the key, but the harm to the public. Juries, however, have shown themselves quite capable in such cases of reaching a "not guilty" verdict - in other words, of being unable to perceive the harm described by the Government.

My guess is that either the Government prosecutions will fail or that the disputed memorandum will reach the media by another route and be published by a brave editor. The admirable Boris Johnson MP, editor of The Spectator, for instance, has stated that he would be happy to publish it and risk a jail sentence. A number of other editors will be of the same mind.

What I should then look to see would be how Mr Blair features. People are drawing the conclusion that since the attack on al-Jazeera never took place, then Mr Blair must have argued Mr Bush out of it. Actually, it is more likely that Mr Bush was persuaded to desist by his own colleagues; even the most hawkish of them must have seen that bombing the TV station would have raised Arab hostility to the United States to dangerous levels. I would expect that at best Mr Blair uttered a mild warning.

I write as if I knew almost word for word what is in the disputed memorandum. Of course I don't. Indeed, I think it may contain serious matters of which we have yet no inkling. I am led to this conclusion by considering the career of one the defendants at tomorrow's hearing, Mr Keogh.

If he did leak the document, then this civil servant with 25 years' experience of tough postings in places such as Islamabad and Khartoum, who was often involved in intelligence work, must have felt exceptionally troubled by what he was seeing. Let us hope we find out what that is.