The Spy Who Tried to Stop a War

by Marcia Mitchell

  ‘The defence believes that the advice given by the Foreign Office Legal Adviser expressed serious doubts about the legality (in international law) of committing British troops in the absence of a second resolution,’ reads the statement.[4] Much of what follows in the statement is obscured by heavy black lines, specifics lost to a censor’s pen.

  It is assumed that the Foreign Office legal adviser referred to here is Elizabeth Wilmshurst, who resigned over the attorney general’s about-face on the war’s legality. Even without a government-censored paragraph, Wilmshurst’s letter of resignation makes clear that there was more than one opinion delivered to the prime minister.

  For months, Blair had refused to bend to increasing pressure for disclosure of the attorney general’s initial opinion, insisting it would be inappropriate to share it with the public. Instead, he repeatedly referred to Lord Goldsmith’s written statement given to Parliament ten days following the ‘confidential’ opinion delivered to him. On occasion, he declared that advice of this nature was privileged and always kept private.

  The final section of the advance notice given to prosecutors by the Liberty team articulated the defence posture with regard to continuance of the case against Katharine Gun. Failure to comply with the defence demand would be considered ‘an abuse of process for the prosecution to proceed, since disclosure of the material is necessary to secure a fair trial’.[5]

  It is not unreasonable to conclude that the defence placed disclosure of the requested information, and the success or failure of the Crown’s case, on Blair’s political doorstep. Equally reasonably, one might conclude differently. And Blair would later make abundantly clear in statements to the press that he was not involved in the decision to prosecute, or not to prosecute, Katharine Gun.

  The defence document was delivered to the Crown Prosecution Service on Tuesday. Katharine would appear before the judge at the Old Bailey on Wednesday. The flurry of calls among the prosecutors, the director of prosecutions, the foreign secretary, and others late that Tuesday afternoon is easy to imagine. It is identification of the ‘others’ that intrigues the mind.

  The defence stage was set for the following day’s drama – until Tuesday evening, when a telephone call came to Liberty from Crown prosecutors. The drama would have a single act, a single scene. Unless someone had a change of mind when the curtain rose.

  Katharine tells the story from her perspective: ‘I was nervous and shaking. Last week, out of the blue, the Guardian reported a rumour that the prosecution might drop the charges against me. When I read the article, I was thrilled to think it could possibly happen! Still, it struck me that if the rumour were true, the prosecution would have notified us. And my husband, ever cautious, counselled me not to count my chickens before they hatched. After all these months of preparing for trial, why would they suddenly decide to let me go?

  ‘Because of the rumour, and because I was going to the Old Bailey, I knew media attention would be focused on me, no matter what happened. I felt I needed a nice new outfit for the occasion. So, that weekend I asked one of my friends, who was still working at GCHQ and living at Cheltenham, to help me search for a new suit. We found one I liked and I bought it. Sounds silly, I suppose, but buying a new outfit helped me face the Old Bailey.

  ‘I learned the night before going to the courthouse that the rumour was true. They were going to drop charges! I was at Liberty talking about how we would organize, about what we would do the following day at court. It was while this was going on that James Welch got a phone call from the prosecution saying that they were offering no evidence. There would be no trial! We were absolutely bowled over. Here we were in Liberty’s offices, leaping with joy and hugging everybody, and then Shami [the Liberty director, Shami Chakrabarti] said, “We’ve got to celebrate! We must go out to dinner!” So that evening, we all went to a Turkish restaurant not far from where Liberty is based. I was so excited and nervous that I really didn’t have much of an appetite, even though it was delicious food. That night I went to bed knowing they planned to drop the charges against me. For the first time in almost a year, I fell asleep without the thought of prison rattling around in my brain.

  ‘Normally, I would go up to London the day before my court hearings, so that I wouldn’t have to travel to court early in the morning. This is all very funny, looking back now, because on the occasions that I’d been to court, I’d stayed with people that I knew from GCHQ. I wonder what the higher-ups would think about staff harbouring Katharine Gun!

  ‘This time I was staying with one of my GCHQ friends who was training in another language and temporarily based in London, where the government had provided her with a very nice two-bedroom apartment. I remember so clearly getting up that morning and dressing in my nice new suit and feeling really very nervous. My friend had to go to her language class as usual, so we said goodbye at the door. She gave me a hug, wished me good luck, and off I went.

  ‘I made my way down from the North London apartment to Liberty’s offices, where I met Shami and James and everybody. We got a cab to the courthouse, and when we arrived there were people watching for us – photographers, but I wasn’t mobbed. We met my barrister, Ben Emmerson, who was waiting by the front door. My stomach was churning. I was counting my chickens, but they were yet to hatch.

  ‘The Old Bailey is a huge, huge building, completely different from the older magistrate courts. In spite of its name, the Old Bailey is a new building and doesn’t feel like a court at all. You walk up these enormous staircases to various courtrooms. We went through a security check, then climbed the stairs to the courtroom where we were meant to be. We were early and went into a café to wait, surrounded by lawyers and barristers wearing wigs and robes. It was difficult to appreciate the uniqueness of the setting because I was so on edge.

  ‘When it became time, I was hustled into the courtroom, where I had to walk down a glass-enclosed passage inside the court – it’s not a passage really, it’s a seating area for the defendant. At the end of the glass-enclosed area, a door leads to the back of the courtroom and an internal stairwell. A female security guard ushered me through to the back, where I was meant to wait until the judge entered the courtroom and sat down. The guard patted me down to make sure that I wasn’t carrying anything – a weapon or whatever.

  ‘It was a peculiar place to wait, because it was simply a stairwell presumably leading to other parts of the building. It had just the one chair, where I was to sit and wait. I found myself wondering what they do with violent defendants in such a situation, and supposed that they are handcuffed or restrained in some manner. It all seemed surreal, like a scene from an old black-and-white film.

  ‘The security guard kept poking her head around the door and looking into the courtroom to see whether the judge had arrived. From what I could see, the room appeared to be quite full. She came back to me saying that she’d never seen so many journalists in a courtroom before. She told me the crowd probably was there because a Category A defendant would be coming up. I asked what a Category A was, and she answered, “Someone who is a murderer.” I looked at her and thought, well, it’s possible, but I didn’t believe that was the case this morning.

  ‘“I think they might be here for me,” I said. She seemed surprised and asked, “Why? What have you done?” I explained that I had leaked a memo about the Iraq War in an effort to stop it, and that I believed they were going to drop the charges against me. And it was a wonderful moment, because she patted me on the shoulder and said, “You go girl.” It really made my day.

  ‘The judge entered, took his seat, and the guard turned to me and said, “Right, you can go in now.” I walked into a glass-panelled area, where I sat down, with everyone looking at me. I could hear all that was being said outside my glass box, but I felt completely alone. It was so different from the previous magistrates’ court, where you sit next to your legal team. There, they call your name and you stand up to a podium of sorts. When the hearing is over, you return to sit w
ith your solicitor. But here you are completely cut off from everybody else, completely alone in a glass cubicle. Isolated.

  ‘The charges against me were read. I pleaded not guilty, and then the prosecutor, Mr Ellison, told the court the case would not go ahead for evidentiary reasons. Absolute silence. The charges truly were dropped! That quickly, that simply, after all that had happened since my arrest!

  ‘Mr Ellison declined to explain the Crown’s decision to discontinue the case. Ben Emmerson objected to the prosecution’s refusal to offer an explanation. Further, he told the judge, there needed to be an investigation as to the who and why of the decision having been leaked to the Guardian six days before it was given to my defence team. He steamed a bit about the fact that eight months had elapsed since my arrest and the decision to charge me, and three more months since then.

  ‘“Katharine Gun is entitled to know – and more importantly, the public are entitled to know,” he said. Mr Ellison, of course, would not give any answers. He said that “consideration had been given” to what the Crown could appropriately say. Giving us reasons for their decision apparently was not considered appropriate.

  ‘I looked around and everybody was standing up and getting ready to leave. As I walked out the other end of the glass cubicle, people started rushing toward me, mainly journalists, but also friends as well as onlookers I didn’t know. James was immediately at my side and tried to protect me, but people kept reaching for me and saying, “Congratulations,” and “Well done.” To go from having felt so terribly alone a few minutes ago to being in the midst of so much attention was quite an emotional leap.

  ‘We walked out of the courtroom followed by a crush of people, some shoving microphones at me, asking questions, asking for comments. James told them there would be a press conference at Liberty in the afternoon; there would be no interviews until then. Most moved back, apart from a lady from the BBC. She came hurrying up to us asking if I would give a live radio interview for BBC Radio 4’s World at One programme. She was very persuasive, and I said yes.

  ‘James and I were hustled down to the ground floor and into a back corridor, where a little room was set up for broadcasting. I put on headphones, and in this completely numb state of mind, I gave my first interview. It went out on BBC World Service as well. Around the world!

  ‘Outside, there were dozens of photographers and journalists with their microphones and cameras waiting for us, calling to me. We decided it was best to speak with them briefly. As I walked over, a lady came up and handed me a bouquet of flowers. It happened so quickly that I didn’t have time to catch her name or where she was from. And then I walked into the crowd of reporters and began answering questions.

  ‘In the meantime, all of this was live on the streaming news channels, BBC News 24, and so on. Yasar hadn’t come to London with me precisely because we didn’t want any press attention on him. Given his tenuous residency status, it was best to keep him out of the picture as much as possible. He sat at home glued to the telly, watching me speaking live into the news cameras. At one point he saw me blinking back tears, and he began to cry.

  ‘We escaped to a cab and went back to Liberty. I went for a walk, trying to get my thoughts together before the press conference. The reality of my freedom was just beginning to register.

  ‘Liberty’s offices were hardly suitable for a gathering like the one that followed. People were crammed into every nook and corner. It was a madhouse. The phones were ringing off the hook. Barry Hugill was taking phone calls from Reuters and journalists all over the world – he probably gave more interviews than I did that day. It was really an electrifying kind of environment. It went on forever, until my voice was hoarse.

  ‘There was a brief break, and I sneaked into a small room to have a sandwich. A reporter followed me and continued to interview me while I ate. I could not fathom the attention, but then thought, “Of course, all of this is not really about me. It’s about the war.”

  ‘At one point, when the lawyers were talking, I went upstairs and phoned Yasar on my mobile. With his voice breaking, he said that he’d been watching me on the telly, and then he started to cry, and I started to cry. And I just stood there, upstairs in the corridor of Liberty, crying my heart out. When we both calmed down, we talked about the fact that I had more interviews to do, but we agreed to meet afterwards. I suggested that he come up to London and that we go down to Brighton together. I said I would call him later to set a time and place to meet.

  ‘My barrister came upstairs and found me. He could see that I’d been crying and gave me a huge bear hug. I felt a sudden, enormous relief. I finally allowed myself to feel all the emotions pent up for so long. I dried my face and went back downstairs to meet the journalists, including Jeremy Paxman, who has such a reputation for bullying.[6] Paxman was last, at the end of the day. The interview wasn’t live, but we did it only once. At the end of it he said, “That wasn’t so bad, was it?” And I said, “You said you’d be gentle on me, and you weren’t!” He just chuckled.

  ‘Later, I called Yasar, now in London, and arranged where we would meet. I picked up the bags I had packed for the next few days and flagged down a cab. My husband, my beautiful Yasar, was waiting for me in our little car parked on a street a distance away, just as we had planned. I jumped in beside him and we held each other and wept. It was over.’

  It may have been over for Katharine Gun when the judge, the Recorder of London Michael Hyam, registered a formal verdict of not guilty, but it was far from over for Blair’s government. Sir Menzies Campbell’s prediction that dropping the charges against Katharine Gun would avoid embarrassment for the prime minister was dead wrong. What was to follow within twenty-four hours saw Blair red-faced and furious, one of his former cabinet members revealing devastating new UN spying secrets, heightened interest in Goldsmith’s advice, demands for a retooling of the Official Secrets Act, and far too many people around the world cheering for Katharine Gun, who was the cause of much of his discomfort. Not helping was a statement the unrepentant former intelligence officer made to reporters outside the courthouse:

  ‘I have no regrets. I would do it again.’

  Whether her words came from a patriot or a traitor depended upon who was listening. We can safely surmise which description the beleaguered prime minister would have chosen.

  CHAPTER 15: Reaction, Rebellion, and a Crushing New Revelation

  I think people in GCHQ will know very, very well what is expected of them, and the Attorney General indicated very clearly it was on the particular facts of this case that the prosecution was dropped. But nobody should be in any doubt that we will apply the full rigour of the law to the greatest extent that we can do so, should people choose to breach the official secrets of the country.[1]

  – Tony Blair, on the collapse of the case against Katharine Gun

  THE REASON FOR the prosecution’s change of legal heart in the Gun case was the hot topic of the day immediately following the fall of Judge Hyam’s gavel. Prosecutor Mark Ellison’s statement, ‘The prosecution offer no evidence against the defendant on this indictment, as there is no longer sufficient evidence for a realistic prospect of conviction,’ made little sense. The facts of the case seemed to indicate that the prosecution had all the evidence it needed. Adding to a widely sceptical reaction was Ellison’s announcement, ‘It would not be appropriate to go into the reasons for this decision.’

  For the Liberty team and most everyone following the case, going into the reasons seemed unquestionably appropriate.

  Among the possible explanations for a government change of heart rehashed that day was GCHQ concern over additional unwelcome publicity about an employee who acted out of conscience. It would be best by far if GCHQ could melt back into its secret world and conduct its business without public commentary about consciences. Further, focus on the Gun case brought attention to the cosy GCHQ–NSA relationship. Katharine’s statement made when she was charged only exacerbated the problem for the prosecuti
on:

  ‘Any disclosures … were justified … because they exposed serious illegality and wrongdoing on the part of the US government, who attempted to subvert our own security services.’ Subvert our own security services! This was totally unacceptable to the British chauvinistic psyche. Further, Katharine’s claim that she tried to ‘prevent wide-scale death and casualties among ordinary Iraqi people and UK forces in the course of an illegal war’ was a justification that resonated from coast to coast. It needled the UK public’s strong anti-war feelings. Seating twelve unbiased British jurors could be a difficult prospect. With the strengthening winds of peace blowing across England, an acquittal could be likely.

  But for most observers, the straw that broke the prosecution’s already weakened resolve appeared to be the defence demand for evidence that the war against Iraq was, in absolute fact, legal according to the attorney general – a demand that would not, or could not, be met. On the Monday before, Harriet Harman, Goldsmith’s solicitor general, made it abundantly clear that the government had no intention of publishing the attorney general’s advice. As the prosecution folded, an unnamed government spokesperson insisted that the decision to drop the case was taken before the last-minute demand by the defence for documents, but few believed that this was the case.

  ‘Katharine’s counsel in court tried to press the prosecutor to give reasons for the prosecution being dropped. As far as we can see, nothing substantial has changed in the last year since she was first arrested for this matter,’ Liberty solicitor James Welch said. But of course something had changed. ‘Late yesterday morning,’ Welch said, ‘we served on the Crown Prosecution Service a document in which we set out the rudiments of Katharine’s defence, and made it clear what type of documents we’d be seeking.’