by Luke Harding
The mood was one of excitement. Over the previous half-year, Owen had privately sifted the evidence and cogitated. He then set down his independent conclusions. The media consensus was this: Owen would certainly rule that Kovtun and Lugovoi were murderers. After all, a fraction of the forensics available would have doomed them. His report, it was assumed, would find the Russian state guilty. Few expected him to point the finger directly at Putin.
Owen was the oracle. Now he was to deliver. Or, to use the language of Shakespeare, we were about to break up the seals and read.
The journalists filed into a red-carpeted space known as the Large Pension Room. Arrayed on a series of tables, and illuminated by chandeliers, were several copies of a chunky-looking booklet. It had a cerulean blue cover and was titled The Litvinenko Inquiry: Report into the Death of Alexander Litvinenko. There was a stuck-on note: ‘Strictly embargoed’. We took our places. This felt a little gigglesome: here were a group of middle-aged professionals, sitting together as if on the cusp of a high school test. At 8 a.m. we picked up the report. We began reading.
The report was 328 pages long but it took mere seconds to locate the judge’s stunning final ruling. On page 246 was a single sentence. It featured at the end of part ten, ‘Summary of Conclusions’.
The sentence said:
‘The FSB operation to kill Mr Litvinenko was probably approved by Mr Patrushev and also by President Putin.’
These eighteen words had an empirical solidity. They were hard judicial fact.
The sentences running up to this point were equally damning, and couched in psalm-like terms, with one striking repeated phrase: ‘I am sure’. These words had an especial legal meaning. They meant Owen was satisfied his conclusions met a criminal standard of proof.
I am sure that Mr Lugovoi and Mr Kovtun placed the polonium-210 in the teapot of the Pine Bar on 1 November 2006. I am also sure that they did this with the intention of poisoning Mr Litvinenko.
I am sure that the two men had made an earlier attempt to poison Mr Litvinenko, also using polonium-210, at the Erinys meeting on 16 October 2006.
I am sure that Mr Lugovoi and Mr Kovtun knew that they were using a deadly poison (as opposed, for example, to a truth drug or sleeping draught), and that they intended to kill Mr Litvinenko. I do not believe, however, that they knew precisely what the chemical that they were handling was, or the nature of all of its properties.
I am sure that Mr Lugovoi and Mr Kovtun were acting on behalf of others when they poisoned Mr Litvinenko.
And:
When Mr Lugovoi poisoned Mr Litvinenko, it is probable that he did so under the direction of the FSB. I would add that I regard that as a strong probability. I have found that Mr Kovtun also took part in the poisoning. I conclude therefore that he was also acting under FSB direction, possibly indirectly through Mr Lugovoi but probably to his knowledge.
Then:
The FSB operation to kill Mr Litvinenko was probably approved by Mr Patrushev and also by President Putin.
Owen had gone further than anyone predicted. Though with a degree of caution, he had ruled that Russia’s president was, in effect, a murderer who wiped out his personal enemies in spectacularly vindictive fashion. It was an unprecedented conclusion.
And one that raised a host of further questions. How had the judge arrived at this? What should the UK government do by way of response? And how should other world leaders behave the next time that Putin popped up among them? Could Barack and David really shake Vladimir warmly by the hand?
As Owen made clear, he had relied on two types of evidence. One was the public stuff laid out in open hearings during January, February, March and July 2015. This material alone, he wrote, established ‘a strong circumstantial case that the Russian state was responsible for Mr Litvinenko’s death’.
The judge’s reasoning was set down in numbered paragraphs. He noted that the two Russian killers had ‘no personal animus against Mr Litvinenko’. There was a ‘possible relationship between Mr Lugovoi (who was clearly the leader of the two men) and the FSB in the years leading up to and including 2006’. Polonium was made in a nuclear reactor. Its use for the hit suggested the pair were ‘acting for a state body’ rather than, say, mafia interests.
On the logistics chain inside Russia, Owen noted: ‘Although it cannot be said that the polonium with which Mr Litvinenko was poisoned must have come from the Avangard facility in Russia, it certainly could have come from there.’
There were, he added, ‘powerful motives’ for individuals and organisation inside Russia to take action against Litvinenko, ‘including killing him’. They included – from the agency’s point of view – his betrayal of the FSB. Additionally, there was his work for British intelligence, his association with leading opponents of the Putin regime, his possible attempt to recruit Lugovoi for MI6, and his ‘highly personal public criticism’ of the president.
Owen was further persuaded by contextual evidence. It said that prior to Litvinenko’s death the Russian state ‘had been involved in the killing of a number of opponents of President Putin’s administration’. The chairman observed: ‘The pattern was of killings both inside and outside Russia. There was evidence of poisons, including radioactive poisons, being used in some cases.’
Then there was Putin’s strange behaviour in the aftermath of the murder. Putin had ‘supported and protected’ Lugovoi, and latterly handed him an honour for ‘services to the fatherland’. ‘Whilst it does not follow that Mr Lugovoi must have been acting on behalf of the Russian State when he killed Mr Litvinenko, the way in which President Putin has treated Mr Lugovoi is certainly consistent with that hypothesis,’ Owen found. ‘Moreover, President Putin’s conduct towards Mr Lugovoi suggests a level of approval for the killing of Mr Litvinenko.’
So far, so commonsensical. But the judge signposted that he had relied heavily in his conclusions on material presented in closed sessions – ‘all the evidence and analysis available to me’, as he put it. He had conducted what he termed a ‘global analysis’. The most intriguing section of his report was part seven. It wasn’t very long, just two pages. It dealt with material covered by restriction notices issued by the home secretary.
So just how much evidence had MI6 and GCHQ presented to Sir Robert? As it turned out, rather a lot: ‘There is a considerable quantity of closed documentary evidence in this case. I have also received a number of closed witness statements, some of which are lengthy,’ he admitted.
The details of these closed sessions had previously been fuzzy. Now, Sir Robert revealed, he’d held secret hearings ‘over several days’ in May 2015. They had taken place ‘in a government building in London’. MI6’s HQ overlooking the Thames? The Home Office? This was the private part of the public inquiry. Those present had included only Sir Robert, the counsel and solicitor to the inquiry, and home secretary Theresa May’s legal team. Plus, of course, ‘a number of witnesses’ who were called to give evidence.
It’s unclear who these anonymous witnesses were. But it’s a fair guess they might have included ‘Martin’, Litvinenko’s Russian-speaking MI6 contact. And ‘Jorge’, who performed the same role in Madrid. Senior figures from MI6 may have testified too. Almost certainly there was electronic intercept evidence: the report allows the inference that chatter might have been picked up between Lugovoi and his FSB bosses. Did this come from British spooks at GCHQ? Or from Washington via the NSA, the world’s most potent government eavesdropping organisation?
The judge, then, had produced two versions of his report: a public version, and a closed version for a small official readership. Only those in government who had signed the Official Secrets Act got appendix twelve. This featured transcripts of the secret sessions, closed documents and witness statements. The restricted version dealt with two key themes: the nature and extent of Litvinenko’s relationship with the UK’s security and intelligence agencies; and the question of whether the Russian state murdered him.
Owen’s closed fin
dings remain unreleased. They include one ‘recommendation’, under the terms of the UK’s 2005 Inquiries Act, so far mysterious. What is clear, however, is that this secret material played a crucial role in convincing the judge that Putin ‘probably approved’ Litvinenko’s exotic, near bungled execution. Like an invisible springboard, it vaulted his understanding of what had gone on in the febrile months of October and November 2006 to another level.
Marina Litvinenko had seen the report twenty-four hours earlier. She and Anatoly, plus their legal team, paged through it in a secure room, on condition that they said nothing about its contents. At 9.35 a.m., the embargo was lifted. The excited journalists locked in at Gray’s Inn promptly shared the findings around the world. I did the same, before running over to the next venue of interest, the High Court.
Events were moving at pace. At 10 a.m., Owen was due to read a short televised statement.
I arrived at Court 73. The public gallery was full. Some there knew that Owen was about to deliver his bombshell; others didn’t. I spotted DI Craig Mascall and other Scotland Yard coppers. They were grinning. Litvinenko’s surviving friends had come along: Zakayev, with his wife and wearing an astrakhan hat; Goldfarb; Dubov. Oxford historian Robert Service had dropped in. Owen, he would soon discover, had praised his ‘impressive’ expert evidence.
There were London-based Russian dissidents, and a reporter from Novaya Gazeta, who’d flown in from Moscow. There was a buzz of voices, speaking Russian and English. Marina Litvinenko and Anatoly sat at the front. She looked radiant; her son, understandably, somewhat wiped out and dazed.
Owen came in, made a nod, began. He explained why it had taken so long to get to this point – more than nine years – and stressed that he’d drawn on open and closed evidence for his findings of fact. The government hadn’t influenced his conclusions, he said. He stressed: ‘They are mine and mine alone.’ Owen said the open scientific evidence had demonstrated conclusively Lugovoi and Kovtun’s guilt. Then he got to the dramatic finale – Patrushev and Putin had ‘probably approved’ the FSB’s London poisoning operation. From the public rows came cries of ‘Yes!’
The judge thanked all of those who had assisted him. He praised the ‘exemplary’ job done by Scotland Yard and had kind words too for the lawyers and courtroom staff. It was made clear that Sir Robert wasn’t giving interviews. He didn’t need to. His report – completed on budget and done by English judicial standards with Usain Bolt-like speed – spoke for itself.
No one, it appeared, had quite seen this coming. ‘I’m gobsmacked,’ Service told me. ‘It shows the autonomy of the judicial process from politics.’ He added: ‘Anglo-Russian relations are not going to be easy for the next few weeks, months or years.’ Goldfarb was exultant. ‘I didn’t expect the role of Putin,’ he said. ‘Now it’s become a legal fact.’
Marina Litvinenko gave her reaction outside the High Court:
‘I am of course very pleased that the words my husband spoke on his deathbed when he accused Mr Putin have been proved true in an English court with the highest standards of independence and fairness.
‘Now it is time for David Cameron [to act]. I am calling immediately for the expulsion from the UK of all Russian intelligence operatives, whether from the FSB (who murdered Sasha) or from other Russian agencies based in the London embassy.’
As well as a wholesale chuck-out of Russian spies, Marina called for the imposition of targeted economic sanctions and travel bans against named individuals, including the duo of Putin and Patrushev. ‘I received a letter last night from the home secretary promising action. It is unthinkable that the prime minister would do nothing in the face of the damning findings of Sir Robert Owen,’ she said.
In fact, the unthinkable was entirely thinkable. It soon became clear that the government’s response was going to be – well, not much. Speaking in the House of Commons, May described Litvinenko’s murder as a ‘blatant and unacceptable breach of international law’. The probable involvement of Putin’s Kremlin came as no surprise, she said. It was ‘deeply disturbing’. Britain had no illusions about the state of Russia. The subtext: we know what’s going on.
May, however, admitted she had little appetite for imposing punitive measures against Moscow. She told MPs there was a wider national security interest in retaining a guarded engagement, including working with Russia to bring about a peace settlement in Syria. Moreover, it was impossible for Britain to impose a travel ban on a serving head of state, she claimed.
Over in Davos, where he was attending the World Economic Forum, Cameron made a similar point. Litvinenko’s murder was a shocking event but, he indicated, it was necessary to keep working with the Kremlin: ‘Do we at some level have to go on having some sort of relationship with them because we need a solution to the Syrian crisis? Yes, we do but we do it with clear eyes and a very cold heart.’
May announced one token reprisal: the treasury was freezing Kovtun and Lugovoi’s UK assets. This didn’t mean much. Back in 2006, Kovtun was so broke he didn’t even own a credit card. He had to get his ex-wife’s boyfriend, Radoslaw Pietras, to pay for his flight from Hamburg to London. It was a fair assumption that his and Lugovoi’s seizable assets were zero.
Critics, led by Marina’s counsel Ben Emmerson, argued that the UK government’s response was weak, wrong-headed, and depressingly predictable. It was predicated on the make-believe that Putin’s strategic and military goals in Syria were the same as Obama’s and Cameron’s: the defeat of Islamic State. They weren’t. Putin’s objectives, instead, were focused on demonstrating Russia’s status as an indispensable international power; shoring up the pro-Moscow regime of Bashar al-Assad; and protecting Russia’s own naval and army assets in Syria’s western Latakia province.
And, it might be argued, bombing previously peaceful areas held by Syria’s moderate opposition in order to drive more refugees towards Germany and Europe. Crushing Isis, if it were on Putin’s list, was somewhere at the bottom.
As some MPs had long argued, a proper response to the report would be to introduce the UK’s own Magnitsky list. Like the US administration in 2012, Downing Street was perfectly capable of banning Russian officials and entities associated with Litvinenko’s murder. Given that many of them had connections with London, this would be a powerful weapon.
Marina Litvinenko was proposing exactly that. As Owen’s report went live, Marina sent a private letter to Downing Street, via the government’s legal department. In it she called for a ‘firm response’. This was needed, she argued, to ‘secure accountability, to deter others from attempting something like this again, and to properly protect the British public’. She invited the prime minister to consider Ukraine-style sanctions against named Russian officials, with asset freezes and visa bans.
She had a list. It featured Putin, Patrushev and Ivanov. And those involved in the polonium chain, including companies: Rosatom, the state nuclear energy corporation; its head Sergei Kirienko; the boss of the Avangard laboratory, Radii Ilykaev; Tenex, Rosatom’s export division; and Tenex’s former CEO, Vladimir Smirnov. Plus an assortment of Russian politicians and prosecutors including prosecutor general Yuri Chaika (the man who in 2006 gave Scotland Yard detectives the run-around) and Alexander Bastrykin, investigative committee chairman.
From Russia, meanwhile, came a glacial response. Lugovoi told Interfax: ‘The results released today just show London’s anti-Russian position once again; the narrowness and lack of desire among the British to find the real reason for the death of Litvinenko.’ Dmitry Peskov, Putin’s press spokesman, was mocking. He dismissed the inquiry as a ‘quasi-investigation’. And ridiculed the judge’s use of ‘probably’, calling the report an example of ‘subtle English humour’.
The Foreign Office summoned Russia’s ambassador, Alexander Yakovenko, for the dressing-down usual in such cases. Emerging afterwards, the ambassador defiantly accused his British partners of a ‘gross provocation’ that would hurt bilateral ties. The inquiry had ‘whitewash
ed’ the incompetence of Britain’s spy agencies, he told Russian TV. Sergei Lavrov, Russia’s foreign minister, talked of groundless accusations and unanswered questions. It was ‘a farce’.
The Russian blogosphere hummed with alternative explanations, many of them peddled by salaried Kremlin internet trolls working out of a glassy office in St Petersburg. Their argument: the inquiry was clearly a sham, since some of its sessions were held in secret. Oh, and Litvinenko was actually killed by MI6 and Alex Goldfarb.
Russia’s state of denial put one in mind of King Leontes in The Winter’s Tale, after the oracle proclaims his wife Hermione chaste and him a ‘jealous tyrant’. Leontes declares: ‘There is no truth at all i’ the oracle … this is mere falsehood.’
*
As might have been predicted, the Kremlin’s reaction was the old cocktail of bluster, evasion and conspiracy theory. For anyone who bothered to look, however, the truth was just a mouse click away. The report was published on the inquiry’s website. Owen’s conclusions and final statement were translated into Russian.
It was, all in all, a model document. Owen’s argument was easy to follow; his prose clear and candid. There were arresting passages. For example: ‘It is, to put it mildly, unusual when inquiring into a death to have available lengthy transcripts of interviews with the deceased, conducted shortly before his death.’ Or: ‘It is apparent that Mr Litvinenko was not mourned long in Russia, at least not by the government.’ There were outings for Latinate words: sometimes a fact would ‘fortify’ his reasoning; Litvinenko faced ‘posthumous opprobrium’.
Beyond this, one got the sense of a strong judicial personality working calmly through the evidence. It was evidence, Owen made clear, that led him to the view that Kovtun and Lugovoi were murderers. When the evidence was inconclusive he found in Russia’s favour: he couldn’t conclude, on the facts available, that Moscow had deliberately frustrated Scotland Yard’s inquiries. The Met had ‘painstakingly pieced together’ the last weeks of Litvinenko’s life, using conventional methods as well as ‘unprecedented sources’, like alpha radiation.