The Justice Game

by Geoffrey Robertson

  ‘It provides no defence whatsoever that the drawings in question may be worth more than the originals,’ the judge continued. ‘You would be untrue to your oath if you took mitigating circumstances into account in finding the defendant not guilty.’ The judge seemed to be directing his jury the way Captain Hook directed his prisoners down the plank.

  ‘Really, ladies and gentlemen of the jury, we have a pretty straightforward question here. The word “reproduction” is a perfectly common one used in everyday discourse, we all know what it means. And we can recognize that Section 18 forbids not just the reproduction of entire bills, but even a “reproduction in part”. If there is no more than just the reproduction of an actual serial number, you may find it difficult not to find that “reproduction in part” has taken place.’

  I seem to remember Mr Justice MacNeill rolling up his red sleeve to deliver this last knock-out punch, but that may just be my imagination. Only the rule in Stonehouse stood between Boggs and his conviction, preventing the judge from ordering the jury to find him guilty for reproducing the serial numbers. It was a devastating summing-up, delivered so persuasively that I feared the jury would convict immediately. My first thought as they retired was how to dissuade the judge from ordering the forfeiture of the offending pictures. The Bank of England officials had, in their evidence, spoken of their determination to destroy them, but Nicolas Serota had volunteered to give them sanctuary in the basement of the Tate Gallery for however many years it took for the Bank’s anger to abate. I would do my best to save Boggs for the nation, I assured the artist as we trooped miserably out of court towards the canteen. Before we even reached it the Old Bailey tannoy suddenly crackled, ‘Will all parties in the case of Boggs return to Court i.’ So it was a guilty verdict – the jury was going to do what the judge had indicated they should do, in this ‘pretty straightforward’ case.

  Dejectedly, we returned to court. The jury were brought in – it was less than ten minutes since they had been sent out. The foreman (we had picked him as a merchant banker) stood sternly for the clerk’s question. ‘How do you find the defendant, guilty or not guilty?’ He uttered an emphatic ‘NOT guilty!’ and only then broke into a smile. Several jurors had difficulty suppressing giggles, and the judge whispered from the corner of his mouth, ‘Well, Mr Harman, you learn something new every day’. We bowed and packed up the canvases. Outside, Boggs did the victor’s walk down Old Bailey for the benefit of the photographers, clutching the largest of his paintings.

  I like to think that this case was won by my knowledge of modern art and the law of evidence, by my cross-examination and my rhetoric. Barristers kid themselves that they ‘win’ cases and that their opponents ‘lose’ them. But deep down I knew exactly how this case was won, and where. It was won every lunchtime, in the jury canteen, and the dialogue would have gone something like this:

  ‘What you doing then?’

  ‘Murder. Disgusting photos – woman fainted and got discharged.’

  ‘I’ve got a rape. Really vicious, evil bastard in the dock.’

  ‘What about you?’

  ‘IRA bombers. We’re in the top-security court, have to be frisked, get a police escort going home. Have they ever knee-capped a juror?’

  ‘Nah. What you doing then? In Court I – must be a big case.’

  ‘Well, there’s this artist. He’s been drawing pictures of banknotes.’

  ‘And?’

  ‘Well, that’s it really. They get sold to art collectors.’

  ‘What? Come off it! You must be joking. No seriously, what case are you doing? What’s the crime?’

  That, I suspect, is where Regina v Boggs was decided. Our jurors could now go back to the canteen with the boast that although they may not have been trying a real crime, they reached this verdict in record time. And juries must never be underestimated. A week after the case I received a note from the foreman – who was a merchant banker – saying how much everyone on the jury had enjoyed it. They were meeting for a reunion party at his flat in the Barbican, and would I like to join them for wine and cheese and further discussion of art?

  The trial altered the face of British currency. The Bank, post Boggs ergo propter Boggs, was humiliated into printing an ordinary copyright notice on the bottom left-hand corner of both sides of every banknote: © THE GOVERNOR AND COMPANY OF THE BANK OF ENGLAND. Governor and co. had finally realised they could not overawe an Old Bailey jury: if they wanted to protect their designs, then like everybody else they would have to sue for breach of copyright.

  Boggs himself went onward and upward. Having beaten the Bank of England, he felt invincible in a courtroom. He also, after a time, began to crave more publicity. So he took a TV team to Australia, where his efforts to draw and spend the local dollar soon resulted in his arrest, Australia having inherited the colonial equivalent of Section 18. These authorities were smarter than their English counterparts, however, and dropped all the charges. Back in America, Boggs had many appreciative purchasers, and was in due course appointed Research Fellow in Art and Ethics at the Carnegie Mellor Centre for the Advancement of Applied Ethics. He has occasional run-ins with the Federal Reserve and the Secret Service. Imitation being the sincerest form of flattery, his success has attracted forgers and counterfeiters. In a determined effort to stop the traffic in reproductions of Boggs, he now ‘signs’ the back of each original with a thumbprint.

  III

  Hard Cases, Real Time

  Chapter 13

  Ali Daghir and the Forty Nuclear Triggers

  The discovery at Heathrow in March 1990 of forty ‘nuclear triggers’ bound for Iraq was a fairy-tale more frightening than any to have come out of Baghdad. It made front-page headlines in every country as newspapers reported that this joint US/UK customs action had stopped Saddam Hussein developing an Islamic bomb. President Bush and Prime Minister Thatcher publicly congratulated the customs team, presuming the guilt of the exporter, Ali Daghir, who was later convicted at the Old Bailey and sent to prison for imperilling the safety of the world. His forty ‘nuclear triggers’ were not, however, destroyed after the case: they were issued to senior customs officials for prominent display on their desks whenever they posed for press photographs, which they sometimes did before the collapse of the Matrix Churchill trial.

  It was during that trial that I first met Ali Daghir. I had been thumping the lectern to insist on fuller security service disclosure. ‘Don’t you know’ whispered a prosecution lawyer ‘that there’s an Iraqi spy in the public gallery?’ He indicated the thin, bespectacled gentleman who had sat jack-knifed over the front row, exhibiting such a close interest in the defence that I had previously assumed he was from MI5. Daghir had just been released on bail after fifteen months in prison, and asked me to handle his appeal. He was a friendly, over-talkative Iraqi businessman, who had an obsessive love for Britain and a family which had excelled at its universities – his wife as a lecturer, his children as students. How had he come to betray this country, by trying to arm its enemy with nuclear weapons?

  Back in 1988, the notion of Iraq as an ‘enemy’ was not entertained by the British government. Despite Saddam’s use of poison gas against the Kurds, the Iraqi state enterprises (which had monopolies of both civil and military manufacturing) offered lucrative trading prospects, so Government ministers officially visited Iraq to drum up business, allowing the country trade credits of £750 million. The DTI even issued a booklet – ‘Hints for Exporters’ – helpfully listing those state enterprises which were in the market for British goods. One was an establishment outside Baghdad called Al-qaqaa, whose representatives were welcomed to Britain and encouraged to place their orders. Daghir’s company, Euromac, won a small contract to supply capacitors, manufactured by a company in San Diego called CSI. Neither Daghir nor anyone else at Euromac had handled military orders before, or had any inkling at this stage that the capacitors were wanted for military purposes.

  This was understandable, since capacitors have tho
usands of harmless uses. They are found in kitchen toasters and refrigerators, and in radios and lasers and air-conditioning units. They are also used in nuclear bombs. They are a necessary building-block of any circuitry where the discharge of pulses of electricity is required. Rather like a battery, a capacitor is a simple device which accumulates and stores electrical energy passed to it along a circuit: on the triggering of a switch it releases a burst of that energy at split-second speed. In a nuclear bomb, energy passes almost instantaneously through the capacitor to wires which lead into the explosives packed around the fissionable material at the core. When the electricity hits, the explosion occurs, compressing the fissionable material, which in turn causes the chain reaction and nuclear explosion. The capacitor is not in fact the ‘nuclear trigger’ – if anything it is the flint, the ‘trigger’ being the krytron switch which is thrown to set the electricity on its deadly split-second journey. When CSI’s President, Jerry Kowalski, received this order from Euromac for Al-qaqaa, he suspected from the specifications (which had been supplied by the Iraqi delegation) that these particular capacitors could be used in the ignition process of a nuclear bomb. So he telephoned the CIA, and was placed under the control of Dan Supnik, a US customs agent, instructed to find out as much as possible about the Iraqi nuclear programme.

  Normally, CSI would simply have notified Euromac that since the capacitor was suspected to have a military application, an export licence would not be granted for sale to Iraq. Instead, at Supnik’s direction, CSI told Euromac that it could fulfil the order without the slightest difficulty: ‘We do not anticipate a problem with obtaining an export licence for Iraq.’ It proceeded to deluge Euromac with faxes expressing the company’s willingness to fulfil the order. Kowalski visited England twice to meet Daghir, reporting back to the CIA the surprising fact that he was ‘not technically literate’. When Daghir actually asked, on one of these visits, what the capacitor might be used for, Kowalski told him ‘it might be used for a laser’. Daghir, without his knowledge, was being used by the Americans as their middle-man in eliciting information from Al-qaqaa which might provide valuable clues as to the progress of its nuclear programme. For this purpose, their duplicity was entirely justified. It did put Daghir to a lot of time and expense, and began to lock him into a relationship with Al-qaqaa which he would not otherwise have had – he had not done business with it before or since the original order, the value of which was only U.S. $10,000. But anyone seeking to do even legitimate business with a dangerous dictatorship takes the risk of attracting the attention of intelligence-gatherers, and of being exploited in the wider interests of world security. Morally, I think their motto should have been ‘Use him, but don’t abuse him.’

  The Americans were concerned when Daghir suddenly faxed CSI to say he was no longer interested – ‘the project has been terminated’. Over the following weeks, on Supnik’s direction, CSI bombarded him with faxes and telephone calls urging him to reconsider. Daghir’s response was important: he urged CSI to deal direct with Al-qaqaa. On four separate occasions Daghir and his assistant, Jeanine Speckman, made written requests asking CSI to bother them no longer. Neither had shown any awareness of the potential nuclear use, and Euromac did not deal with arms-related exports. In August 1989 – twelve months after the intelligence operations had commenced – it must have been clear to US and UK authorities that Daghir and Speckman were no longer interested in procuring the order for Al-qaqaa on behalf of their company.

  So far, so good. The secret agents had acted commendably, using Daghir as an unwitting agent to gather intelligence. The next stage would be to cut Daghir out altogether, as he in fact wished, and for the Americans to develop their own relationship with the scientists of Al-qaqaa. In mid-July, the Iraqis had issued an invitation to Kowalski to visit their secret factory, and later they extended this invitation to Supnik and even sent him a visa. Taking up this offer would have provided an intelligence bonanza. Al-qaqaa was the site of Saddam’s nuclear project, and here were the Iraqis wishing to discuss with CSI a joint project to manufacture capacitors and krytron switches. It would have been the perfect opportunity to observe their nuclear progress. Supnik and Kowalski were courageous men committed to US interests, and they asked permission to go. Incredibly, Washington ordered Supnik to refuse, thereby depriving the West of direct and early access to Saddam’s most secret factory, and also jeopardising Supnik’s cover as ‘sales director’ of CSI, since he could give the Iraqis no good reason for his refusal. Why this astonishing decision to abandon the opportunity to gather intelligence on Saddam’s bomb, and instead to set Daghir up for one of the world’s most publicised arrests?

  A US Customs Service memorandum dated 4 August 1989 reads:

  The British authorities have also added their total support to the proposed operation and the British Prime Minister was advised of the status of the investigation and is very much interested in its progress and successful outcome.

  The British Prime Minister was Mrs Thatcher, and the operation now being proposed was to trap and jail Daghir and Speckman for involvement in the export to Iraq of goods which, at this juncture, they had on four occasions refused to have anything to do with. Yet here was the Prime Minister apparently expressing her interest in a ‘successful outcome’, a factor which persuaded the US Treasury to fund what soon came to be called ‘Operation Quarry’.

  Ali Daghir rather than Saddam Hussein became the ‘quarry’. When Al-qaqaa engineers came to London on an official trade delegation, Supnik and Kowalski were rushed from San Diego to meet them and discuss Al-qaqaa’s capacitor requirements. The Iraqis never actually explained why they wanted capacitors of this specification, but Supnik (posing as CSI’s sales director) promised Daghir he would arrange the export ‘and will do it safe so that you are happy’. Daghir blew hot and cold – in telephone calls to Supnik he asked him again to deal direct with Al-qaqaa, and faxed him on 14 November and again on 6 December to say that Euromac did not want the capacitors shipped ‘through us or to us’. But US Customs prosecutors were not interested in evidence of innocence: in November, they had Daghir and Speckman indicted by a grand jury sitting in a secret session in San Diego. Supnik tried to lure Daghir to California to inspect the capacitors so he could be arrested on the spot, but his pressing requests were declined. On 29 December 1989, when Supnik called to say that CSI insisted on exporting the capacitors to Euromac in London, Daghir declined to accept them. ‘I don’t want to get into any trouble,’ he said as he asked CSI to call the whole deal off: ‘Just say sorry.’

  Suddenly, there arose a political motive for Daghir’s arrest. Farzad Bazoft, the Observer freelance arrested for snooping around Al-qaqaa, had made a televised ‘confession’ in January 1990 to working for British and Israeli intelligence. His trial was imminent, and a death sentence on the cards. The British Government was extraordinarily concerned about his fate, according to a top-secret US memorandum:

  UK Customs asked US Customs if it were possible to speed up the Euromac sting. The reason for the request was that the British were grasping for any leverage they could get on Iraq so they could avoid the execution of the unfortunate UK journalist Farzad Bazoft.

  The idea of ‘speeding up the sting’ for this purpose – presumably, so Daghir could be used in a projected spy swap – was bizarre, not least because Daghir was of no importance to Iraq and any offer to ‘trade’ him for Bazoft would have been otiose. In any event, however humane the objective, it would have been wrong to use the legal process to serve diplomatic expedience. But the Americans were receptive, and the ‘sting’ did move swiftly to its conclusion. Supnik told Daghir that CSI insisted on sending the capacitors to him in London, rather than direct to Iraq. He also told Daghir for the first time that in his opinion they were designed for nuclear warheads, at which the man laughed disbelievingly. After much persuasion he agreed to accept them, then later changed his mind and again refused delivery. What finally persuaded him was not pressure from the Americans bu
t from Al-qaqaa, furious with Euromac over its delays. The company was warned that it would be blacklisted by all Iraqi state establishments unless it delivered the capacitors. As most of his business was with Iraqi state enterprises, Daghir was threatened with commercial ruin. On 13 March he succumbed, wrongly, to ensure his business’s survival. He agreed to accept delivery of the capacitors in the UK. Three days before, Bazoft had unexpectedly been brought before a military court, and sentenced to death.

  If Daghir’s arrest was to be used as a bargaining counter for Bazoft’s life, then there was no time to lose. But six days were lost. The capacitors were booked to arrive at Heathrow aboard TWA flight 760 which did not depart until 19 March – the US Customs needed time to arrange some self-serving television network publicity. The British must have assumed that international appeals and diplomatic interventions would delay Bazoft’s execution – another fateful misreading of Saddam. On 15 March, without warning, Bazoft was hanged.

  There was no point now in using arrests of Iraqis in London as ‘leverage’ to save Bazoft. But the final phase of the sting operation was well under way: by now a ‘world exclusive’ deal had been done with NBC, which was given the scoop of filming the capacitors (henceforth invariably described as ‘nuclear triggers’) as they were loaded aboard TWA flight 760 in San Diego. This cargo was seized on arrival at Heathrow, and ‘dummy’ capacitors substituted and duly delivered to Euromac. Daghir handed them to Omar Latif, manager of Iraqi Airways, for special onward transit to Baghdad, at which point everyone was arrested. US Customs exulted at a boastful press conference which put the story of the ‘nuclear triggers’ on front pages throughout the world. British newspapers ignored the law against prejudicing trials and assumed the guilt of Daghir (they described him as an evil Iraqi whose acts threatened world peace) and of Speckman (whom they depicted as a cruel and callous Frenchwoman). Daghir was not permitted bail. ‘Operation Quarry’ and the UK Customs investigators who played a part in it basked in the adulation of a hundred editorials and were soon celebrated by a television series, The Quarrymen. After that massive prejudice, the result of their trial at the Old Bailey must have seemed a forgone conclusion: they were convicted in June 1991, a few months after the triumph of ‘Operation Desert Storm’.