The Justice Game

by Geoffrey Robertson

  By the time the appeal was heard – in May 1994 – Daghir had done fifteen months in prison before obtaining bail pending appeal against his conviction and five year sentence. Jeanine Speckman had served her eighteen-month sentence in full, having been advised by her trial counsel that she had no grounds for an appeal. The appeal focused on the decision taken in August 1989 to transform the intelligence-gathering exercise into ‘Operation Quarry’, designed to entrap Daghir and Speckman. It must have been a joint decision by US and UK agencies, so we asked for all the intelligence documents on ‘Operation Quarry’ at that time. I was told (although I could scarcely believe it) that all such documents were routinely destroyed after six months, so there was by now no evidence of how the most celebrated co-operation between UK and US agencies on the subject of the ‘Islamic bomb’ had come into existence. I turned to American sources, and called the Washington counsel assisting Harry Gonzalez, Chairman of the US Congressional Committee which had investigated ‘Iraq-gate’. He sent me the explanation given to the US Treasury to obtain funding approval for ‘Operation Quarry’.

  It was a six-page memorandum, prepared by US Customs and dated 4 August 1989 at a time when Daghir and Speckman were never alleged to be involved in any criminal offences and indeed had no idea that the capacitors had any nuclear or even military use. This document revealed that British military intelligence had given its ‘stamp of approval’ to what was plainly envisaged as a long-term entrapment operation. The memo predicted how, when Supnik and Kowalski were finally able to arrange a meeting with Daghir and the Iraqi engineers, Supnik would ‘elicit the conversation and develop the evidence’ necessary to bring about an agreement to provide the capacitors, and would thereafter ‘develop and obtain the evidence’ necessary for a prosecution. To this end an Assistant District Attorney in San Diego ‘has offered his support in guiding the operation towards a successful conclusion’. ‘Operation Quarry’ had one overwhelming purpose: ‘of developing and obtaining that evidence necessary to prosecute the subject of this investigation – Ali Daghir and Jeanine Speckman’. There could scarcely be a clearer example of ‘the State’ – in this case, the United States – deciding to manipulate two citizens in a way which, nine months later, was to end in their arrest and imprisonment. Had the trial judge possessed this information, he may well have ruled the prosecution evidence generated by ‘Operation Quarry’ inadmissible on the grounds that it had been obtained by an agent provocateur. It was designed from the outset to ‘develop’ (i.e. to create) evidence of crime, under the guidance of an obscure prosecutor in San Diego, apparently spurred on to a ‘successful conclusion’ by the wishes of the British Prime Minister.

  International law enforcement should not operate like this. Ali Daghir became a pawn in an intelligence game that turned stupid. His alleged crime would never have been contemplated had he not been drawn into an endlessly frustrating, expensive and time-consuming relationship as intermediary between CSI and Al-qaqaa. By the time Daghir arranged the unlicensed export in March 1990, he was at the end of his tether: the eighteen-month deception had created expectations in Iraq which he was now under some business compulsion to fulfil. He should not have surrendered to that pressure, but he should not have had it applied so relentlessly: there were fifty-two recorded telephone calls between Supnik and Euromac in the closing months of the sting: the vast majority of them were initiated by Supnik. The tragedy of ‘Operation Quarry’ was that Supnik’s superiors dumbed a clever piece of intelligence-gathering down into a plan to catch two very small fry, in order to propagate a false story about how western intelligence had caught Saddam with his finger on the nuclear trigger.

  By the time of the appeal, evidence had emerged to cast grave doubt on the basis of this story, that these particular capacitors were for use in nuclear bombs. After the end of the Gulf War, the UN sent teams of scientists into Iraq to inspect its nuclear programme, which was frightening enough, but they found no evidence that the CSI capacitors were designed to play any part in it. The prosecution case, which pivoted upon their nuclear use, appeared with hindsight to have been misconceived. Of course, it is a fair bet that they were not being sought for the benign purpose of air-conditioning laboratories against the desert heat or providing pop-up toast for engineers’ on-site breakfasts. Al-qaqaa was the place of a mysterious explosion which had killed a number of Egyptian scientists in 1988, and Bazoft’s execution for snooping on its perimeter suggests that those who ran it were up to no good. It is impossible, even now, to hazard a confident guess as to what use the Iraqi engineers had in mind for those particular capacitors, which were certainly not ‘triggers’ and were not ‘nuclear’. They would have suited research lasers and high-speed flash photography units of a kind used at Al-qaqaa. They could also have been deployed in the separation stage of a Scud missile and this was a possible use had they ever reached Iraq. It was not an attractive use – indeed, it was a deplorable one – but it was not a use known to, or which the prosecution had charged against, Ali Daghir.

  The appellants had another, and unanswerable, argument. Their trial judge had made a fatal error in summing the case up for the jury. Its task was to decide whether the capacitors were designed for use in nuclear detonation, but he had mistakenly told them to convict if they were satisfied that they had any military use, whether nuclear or not. This ground of appeal was short, simple and overwhelming: their conviction had to be quashed. I believed it should be quashed for other reasons as well: because the evidence was obtained by entrapment, and because of the fresh evidence from the UN nuclear inspectorate. But the shortest point came first, and after just two hours of argument the Court of Appeal judges pronounced themselves convinced that the convictions could not stand.

  Outside the Gothic façade of the High Court it was Ali and Jeanine’s turn to pose with the regulation bottle of champagne, and mumble a few forgiving words about British justice finally being done, five years after the secret organs of two great nations had decided to interfere with their hitherto insignificant lives. They had been scapegoats in the West’s love–hate relationship with Saddam Hussein, which took the form of secret government approvals to arm him to the teeth while at the same time permitting occasional law enforcement forays to reassure the public that they still regarded him as a threat to world peace. This Janus-faced policy was aptly described by Congressmen Gonzalez as ‘stupidity on a grand scale’, and criticism must be moderate in the light of the confusion this policy produced at every law enforcement level. The lesson for the quarrymen, and for those in military intelligence, is not to spoil an information-gathering exercise by turning it into a public relations exercise. Supnik and Kowalski were clever and courageous men who might have become the unsung heroes who penetrated Al-qaqaa: instead, they were directed to entrap Ali Daghir. There is always an argument which seeks to justify the imprisonment of those who have been gulled by agents provocateurs, by reference to its deterrent effect on those who might be minded to act likewise. On the contrary, it teaches them to mind how they go. There was no reduction in arms sales to Iraq in the months after the sting: the published details of how it was accomplished merely served to alert the arms procurement network and its willing suppliers about the danger of being ‘Supnikked’. Otherwise, it was business as usual: discreet and deadly.

  The story of Ali Daghir and the forty nuclear triggers demonstrates, perhaps more pointedly than any other in this book, how the adversary system allows the most disadvantaged of defendants a chance, clutching at David’s slingshot, to defend themselves against the Goliath of the State. Ali Daghir was an underdog and an outsider. He was an Iraqi whom the intelligence services of America and Britain had decided – for reasons which seemed helpful to the West – to trick and trap into committing a serious crime. He was rash enough, in the end, to attempt to export goods without a licence, an act which was sensationally portrayed as a kind of treason to world peace. Millions of pounds were spent, first to ensnare him and then to convict him:
he was jailed after a six week trial as an enemy of the people – of all people, in that he had supplied ‘nuclear triggers’ for Saddam’s bomb. People would not care that he had been incited, or that the capacitors were not intended for nuclear use. The very fact that he was prepared to contemplate assisting Saddam would be warrant enough for leaving him to rot in prison. But entities independent of the State took up his appeal: legal aid paid for his lawyers; an independent judge gave him bail; an appeal court quashed his conviction because of a basic mistake in the summing-up, after this had been effectively conceded by an independent prosecutor. The court did not flinch from finding his trial unfair, for all the embarrassment that caused to government agencies in the US and UK.

  In previous decades the courts might have fudged – if Daghir had been accused of assisting the Soviets or the IRA – but by now we were in the nineties, and in this decade the justice game has lifted at appellate level precisely because there were so many wrongful convictions in politically charged trials of the past. Daghir’s appeal court was presided over by a great Chief Justice, the late Peter Taylor: if convinced there had been a fundamental mistake, he would simply shrug his shoulders and quash the conviction. (He was not standing for re-election like Distict Attorneys in America, so keen for that reason to guide the big cases to a ‘successful conclusion’.)

  Ali Daghir was overjoyed by the appeal results – curiously, less by the fact it meant he would not return to prison than by having his simple faith in British justice restored. Jeanine Speckman was more detached, and understandably: she should not have been convicted in the first place, and she had served out her sentence with a wintry fortitude.

  These last two paragraphs read complacently, as if written by a self-satisfied lawyer congratulating the system on doing justice by the final whistle. Certainly, I was impressed by the lengths to which the Court and the prosecution went in 1994 – under the impetus, it must be said, of the continuing Scott enquiry into Matrix Churchill – to harry the UN Nuclear Inspectorate to provide evidence helpful to the appellants. But I have, even now, an uneasy feeling about this case. Books on the Gulf War still recount, as if a matter of historical fact, that Saddam’s ‘nuclear triggers’ were intercepted at Heathrow in the hands of Ali Daghir. He was blasted by the media as the leader of a ‘nuke bomb gang’. Newsweek uncritically carried the false claims of U.S. prosecutors, identifying him as ‘an Iraqi intelligence officer’ who ‘had done billions of dollars of business on behalf of Iraq’s war effort’. It was so easy to use NBC to promote the story in return for a scoop, and for the San Diego prosecutors to release their ‘sealed indictment’ to the world’s press – i.e. to reporters who were ‘not technically literate’ and were too excited to check the facts. In the result, Ali Daghir and Jeanine Speckman became the only persons ever to be jailed in Britain in respect of arms to Iraq, although leading British companies, with secret government approval, supplied vast quantities of weapons-related goods to Saddam in the years before his invasion of Kuwait. It is difficult to forget the ‘warm congratulations’ so publicly bestowed by Mrs Thatcher, four days after Daghir’s arrest, on all involved in Operation Quarry: ‘The whole nation has reason to be grateful to you.’ Politicians should postpone such plaudits, with their presumption of the defendant’s guilt, until after the final appeal. The guilt of ‘outsiders’ – foreigners, Irish republicans, blacks, ex-prisoners, mental patients – can too readily be assumed, especially in sensational cases: when it unravels, finally, in the Court of Appeal, after their lives have been scarred, we cannot feel over-much pride that ‘justice’ has been done at last.

  What remains unsatisfactory about the Daghir appeal is that it succeeded too well, or at least too quickly, relieving the court from considering the important argument about entrapment, fuelled by the fresh evidence we had obtained from America about the political direction of ‘Operation Quarry’. The use of ‘agents provocateur’ by State agencies is an issue that has concerned me ever since I began to practise at the Old Bailey in the early seventies. That was when corrupt drugs squad officers would use informers to set up ‘busts’ for which the informer would be rewarded with part of the cannabis, which he was expected to sell, returning a share of the profits to the police. Such problematic tactics have exercised every criminal justice system since Adam was arraigned in the Garden of Eden: whether to punish a person who has been talked and tempted into committing an offence. Dr Samuel Johnson, whose chambers I occupied for many years, had a pretty good grasp of human nature. ‘There is,’ he asserted to Boswell, ‘a proof to which you have no right to put a man. You know, humanly speaking, there is a certain degree of temptation, which will overcome any virtue.’

  In the US, if defendants admit that they committed the crime but satisfy the court that they would not have done so without the ‘creative activity’ of the police or their agents, they are entitled to acquittal. The purpose of law enforcement is to detect crime, not to test virtue by tempting citizens selected as scapegoats by the State. In the words of American Supreme Court Justice Felix Frankfurter,

  The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than to detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.

  ‘Entrapment’, as it is called, is not an easy defence to run, because the court will draw a line between ‘the trap for the unwary innocent and the trap for the unwary criminal’, and will readily infer that far from being a lamb led to the slaughter the defendant is a wolf snared on the prowl. Nonetheless, an entrapment defence should have succeeded for Daghir. he had been caught red-handed trying to export the capacitors without a licence. But he would never have been placed in this position without the most remarkable methods of persuasion and cajolement, employed for eighteen months by US undercover agents with the approval of British Intelligence and the CIA. There is no ‘entrapment’ defence in English law, but there is a line of legal authority to the effect that every trial judge has an inherent power to exclude evidence ‘obtained by conduct of which the Crown ought not to take advantage, even though tendered for the suppression of crime’. The moral imperative – ‘ought’ – opens the window, at least a crack, to the full blast of an argument about the immortality of the State itself creating the crimes it was meant to be prohibiting. It was that argument which I wanted to make for Ali Daghir, because if it succeeded for him it would have to succeed for others suckered by the State into crimes they would otherwise not have contemplated.

  There are many who think that people who eventually succumb to temptation from State agents deserve to be punished nonetheless. The better view is that officials charged with maintaining law should not arrange for it to be broken. Secret policing is essential, but no State which puts a value on the liberty of its citizens can allow it to operate without frules for ensuring that unwary innocents do not stumble into traps laid for unwary criminals. Daghir gave in to pressure, but the rules of the justice game provided for his eventual acquittal, notwithstanding his technical guilt or the extent of the State power ranged against him. These rules – the disclosure obligations on the prosecution and the power to exclude unfairly obtained evidence – are under constant attack for ‘protecting the guilty’. In fact, they serve to protect people who turn out to be not so guilty after all.

  Chapter 14

  Friendly (sic) Fire

  The scene of the crime was featureless Iraqi desert, over the border from Saudi Arabia and on the way to Kuwait, a route taken on 26 February 1991 by a convoy of British tanks and armoured cars which encountered little resistance from the enemy. At 3 p.m. they were resting, a short breathing space before the next push for Operation Desert Storm. On the armoured vehicle known as ‘Call-sign 22’ nineteen-year-old Fusilier Ferguson sat reading a letter from his girlfriend; his comrades smoked an
d joked, watched by Private Halliwell, driver of ‘Call-sign 23’ parked a short distance away. At 3.02, Halliwell saw the vehicle explode in flashes of fire and steel, and heard the screams of men with fire in their hair and shrapnel in their legs. It was a mine, evidently, and there were likely to be more. Halliwell grabbed a first-aid kit and ran over to help, fearless of flying shrapnel from the exploding ammunition, risking his life and, ironically, saving it by the same action. For behind him as he ran came another searing explosion: he turned to see that his own tank had been turned into an incinerator in which none of the crew could survive.

  There were American planes in the clear blue sky – an A-10 was seen by some soldiers to bank away with a waggle of its wings which later they would interpret as a ‘victory roll’. For the present there were frantic mine-detection operations, then the wounded had to be helicoptered back to base hospitals and pieces of the dead collected for the body bags. They stuck a simple cross in the sand, ringed with nine helmets bearing the red and white hackles of the Royal Regiment of Fusiliers. The chaplain came, to offer up a prayer for that ‘safe lodging, holy rest and peace at the last’ which is to come after ‘the fever of life is over and our work is done’. These teenage lives had barely encountered fever or started work: they had been blown away by American airmen.