The Justice Game

by Geoffrey Robertson

  This suited Paul Henderson. He had been given the message by Trade Minister Alan Clark in person at their meeting in January 1988 – export bomb-making equipment, but don’t mention anything military. So on the licence applications his firm sent to the DTI the purpose was described as ‘general engineering’. The forms made plain, however, that his machine tools were going to Nassr, well known as Saddam’s biggest bomb factory. Logically, there can only be one use for general engineering tools in a factory dedicated to making bombs. The DTI already knew it because MI6 had told them repeatedly. Everybody within Whitehall cleared to receive intelligence information knew: it was no secret, except from the public. Paul Henderson happily signed contracts for machine tools capable of making bomb and rocket fuses. He kept visiting Iraq and meeting MI6 afterwards (some twenty times in 1989 and 1990) for debriefings. The documents showed he was a good manager, a good engineer and a good spy.

  The invasion of Kuwait had brought the cosy accommodation with Saddam Hussein to a sticky end, and ministers and diplomats affected moral fervour against a man they now likened to Hitler. How could they then face the awful possibility that the bombs made by the technology they had permitted him to import from Britain would be used to kill British soldiers? As Operation Desert Storm gathered in early 1991, with an election only a year ahead, it became a political impossibility for the Conservative government to admit its role in arming Saddam. So the equivocation in Parliament became blatant dishonesty (the Howe Guidelines had been ‘scrupulously and carefully followed’ said a DTI minister in January 1991). But would anyone sniff out the truth? Paul Henderson’s arrest and charge (a week after the Iraqi surrender) had the consequence of shutting up the media, which could not thereafter comment without committing contempt of court. It also stymied a parliamentary committee investigation into the ‘Supergun’, since all the evidence was now sub judice: senior DTI officials could and did refuse to testify on the pretext that this might prejudice Henderson’s trial. The only downside was that government documents revealing the truth might be required by Henderson’s defence. So officials decided to resist disclosure by the device of the PII certificate. The case was committed for trial in November 1991 with two PIIs (from Kenneth Baker and Peter Lilley) up the government sleeve which would stop the truth about Britain’s ‘Iraqgate’ emerging in the magistrate’s court. It had not emerged by April 1992, when the Conservatives won the general election. Had the extent of their involvement become public before then, together with their misleading of Parliament, the result of that election might have been different.

  That, matter of factly, is what happened – at least on my reading of the documents. Scott was correct to conclude that there was no conspiracy, in the sense that there was no grand design, or grand designer. When under threat, the State (its mandarins as much as its ministers) protects itself instinctively, like an octopus disturbed by a stick. The coils swirl in different directions, the overall pattern is unplanned, but the motive is always self-protection: damage to others is incidental. There was no masterplan or master-planner, no shadowy Whitehall manipulator who decided to make Paul Henderson a scapegoat so that the government could keep the lid on the scandal until after the election. The prosecution of Matrix Churchill was not a conspiracy, but nor was it a cock-up in the sense of a series of accidents or a coincidence of incompetencies. It was a lot of people, each with some small amount of power, jerking their knees in protection of the State.

  A senior civil servant at the DTI exemplified the prevailing mindset, shortly before the invasion of Kuwait, when on hearing of a Customs Investigation of Matrix Churchill he asked his ministers in a memo, ‘Do you really want the DTI’s dirty washing aired in court?’ Of course they did not: ministers and civil servants alike were convinced of the need to cover up the stains. So pressure was put on Customs to drop the investigation. After the invasion, however, it became much more convenient for the government to have Henderson charged and tried. PII certificates were relied on to keep the dirty washing under wraps, and other measures were taken, such as trimming witness statements, in an attempt to keep the dirt from festering in the evidence. I think this is what Scott meant when, having found so many people responsible for trimming the truth, he exonerated all of them from having acted in bad faith. They were not acting maliciously, but reacting like men who had taken instinctive decisions to protect the State from embarrassment, in the genuine belief that this was for the public good. Scott exculpated the makers of these decisions because they sincerely believed it was for the best. But their sincerity stemmed from the improper assumption that protection of the State is more important than justice to the individual or honesty to Parliament.

  These decisions were all directed to making it more difficult to establish Paul Henderson’s innocence. Many of them concerned items of relevant information they did not want me to know (hence they were edited out of the witness statements) or relevant documents they did not want me to see (hence the PII certificates). The witness statements supplied by the Crown showed a regular, properly brought and fully evidenced prosecution. The full story, once the secret documents were fed into the master chronology, was sensationally different. The truth would set Paul Henderson free. The problem was to get the trial to tell it.

  If this trial were to proceed, the nature and extent of Henderson’s contacts with MI6 would have to be publicly revealed in his defence. The prosecution had served an unsigned statement from ‘John Balsom’, his MI6 controller, carefully crafted to play down his importance. It made no mention of the fact that before Henderson’s visits to Iraq he was warned solemnly and scarily about the risks he was taking. To drive the warnings home, Balsom had given him a book entitled Republic of Fear written by a dissident Iraqi. Paul had kept the book, which described Saddam Hussein as a megalomaniac whose secret police and court system were deployed to torture and execute ‘spies, saboteurs and foreign agents’. If this was MI6’s warning to its agent, then he was not merely a businessman who passed on trifling information: he was a spy tasked to risk his life. The book made very clear that any exposure of his spying role would make him, as long as he lived, a target for Iraqi vengeance. He might be safe for the moment, while Iraq was licking its war-wounds, but in years to come he would be one of the Saddamned, a traitor marked out for vengeance.

  This was the most worrying thing about the prosecution of Paul Henderson. He had done the State much service, at the risk of his life. That did not of itself mean that he was innocent, but it did mean that he would be punished irrespective of his guilt or innocence merely by being put on public trial and having to raise his intelligence work as a defence. This was a painful inducement for him to plea-bargain rather than to reveal his role as a spy. He would make, in this way, the perfect scapegoat: a man who would have to carry his knowledge of secret government approvals with him to jail, because the alternative – an Iraqi assassination – was less pleasant than a short prison sentence in return for a plea of guilty. This was exactly what had happened earlier in the year when Paul Grecian (the ‘Ordtech’ director who had first told the intelligence services about the ‘Supergun’) pleaded guilty in order to keep his own spying role secret from the Iraqis – although in return he had been offered a suspended prison sentence. I later represented him at his appeal, which succeeded after we obtained documents which had been wrongfully withheld. They included this chilling MI6 memo:

  If Ordtech ends up in court Grecian may be persuaded to keep quiet about his connection, but there is the obvious risk he would try the ‘working for British intelligence’ ploy . . . However, his personal future might be in some doubt if ever publicly identified as the man who blew the gaff on the Iraqi Babylon [Supergun] project. If we were not too squeamish we might use this point to ensure silence.

  Paul Henderson had no intention of keeping quiet to protect his personal future. His dilemma was agonising, although I knew the intelligence services were in a double bind as well. They routinely debrief businessmen who trav
el to countries which pose potential threats to world peace or to British interests, and confirmation of this fact in court would increase the danger to British citizens – whether involved with MI6 or not – whose jobs took them within the jurisdiction of paranoid regimes. They would be most unhappy to learn that if prosecuted by an independent agency like Customs, MI6 might abandon them or even give evidence against them. On the other hand, it might be no bad thing to emphasize that they cannot obtain immunity from English law by doing intelligence work on the side. Only one person could, constitutionally, resolve the dilemma: the Attorney General. As guardian of the public interest, it was his duty to make the most careful investigation of this case, weighing the public interests at stake and permitting the trial to go ahead only if the evidence of Henderson’s guilt was overwhelming. This never happened, and his failure to take a grip on the case was the basis upon which Scott found him ‘personally at fault’. But it was by now the second week of October, and all government ministers were preoccupied: it was the 1992 Tory Party conference. The trial would go ahead.

  ‘I know you think this trial will be important. I do too, and I’ve told my editor. But . . .’, – Britain’s best investigative reporter, working for the trenchant World in Action, lowered his eyes to study the blue carpet on the floor of the Old Bailey courtroom – ‘but my producer has heard some silly rumour about John Major having an affair with a cook and has ordered me to look into that instead of covering the Matrix Churchill trial.’

  It was the opening day of the trial. I looked from the shamefaced David Leigh across to the press box, which would remain largely empty for the next few weeks until the prosecution was on the point of collapse. For all the ministers and civil servants and government lawyers these proceedings would ultimately draw into the lashing coils of its post-mortem, the media would go scot-free. It neither covered nor comprehended the case, after its combined investigative talents had failed to discover how ‘UK Ltd’ had been arming Iraq in contravention of stated government policy ever since that policy was first stated by Geoffrey Howe back in 1985. The Old Bailey press gang had been and gone, doing their usual thing of reporting the prosecution opening, then disappearing to cover rape and murder trials until returning, vulture-like, for the verdict. The BBC did not attend at all until the very last day. (One of their most experienced reporters had asked to be assigned to what he described as ‘the political trial of the century’: they sent him on a course instead.)

  By contrast, the New York Times had made itself aware that information of some importance might emerge at the Old Bailey concerning allied policy towards arming Saddam in the years before his invasion of Kuwait, a scandal they had dubbed ‘Iraqgate’. They assigned Dean Bacquet to the case, who turned up one morning to meet me at court, but was refused entry: he was black and he lacked the pass issued to ‘approved’ court reporters by the Metropolitan Police. I went down to the front desk to greet him through the security gates: ‘Don’t worry, I’ll arrange for you to come into court so you can sit in the press box’. He smiled and shook his head, and said what no British reporter would ever contemplate: ‘That’s OK, I’d prefer to sit in the public gallery’. And he did, overlooking and overlooked by the prosecution on one day when the press box was empty, and it revealed how allied intelligence learned about the Iraqi procurement network in 1987 – three years before the arms it procured were used in the invasion of Kuwait. Mr Bacquet’s week of anonymity in the public gallery produced three stories for the front page of the New York Times, yet still the BBC and the British press did not bother to attend. The most regular exception was Richard Norton-Taylor of the Guardian: he was one journalist who, when the trial collapsed, had any real idea why.

  We made a bad start with the jury. When asked whether there were any classes of juror we wanted to exclude, my fear was of Jews: Matrix Churchill machine tools had made rockets, and the memory of Scuds hitting Tel Aviv was all too fresh. But I phrased my objection ineptly and the judge would have none of it. The jury was sworn, and Alan Moses delivered the first two hours of his carefully prepared address before the lunch break. That is when the Jewish juror declared: ‘I’m sorry, I’ve got relations in Tel Aviv; thinking of them makes me emotional. I wouldn’t have an open mind.’ He need not have apologised – others might have sat silently and put their prejudices into play in the jury room. He was replaced, and Alan had to recite his opening all over again for the newcomer’s benefit. The incident brought home just how difficult it was going to be to scale the mountain of animosity against anyone who had – government permission or no – done deals with Saddam Hussein.

  Over the next fortnight, I lived a double life. By day in court I would examine engineers about the technical capacities of lathes and milling machines. By night I would take a magic carpet ride on the documents covering my desk at Doughty Street, from the secret corridors of Whitehall to the arms factories of Baghdad. This was the big political picture of how Iraq established a procurement network for its vast munitions factories, making weapons described as ‘conventional’ – a comfortable adjective that eased the conscience of those who approved the export of raw materials and machine tools which could turn them into unconventional weapons: rockets and missiles capable of delivering chemical gas and nuclear bombs. It is tritely said, by arms dealers and their apologists, that weapons are neither good nor bad – moral judgment can only be made on people who use them. What the documents revealed, however, was precisely the opposite: the Thatcher government’s moral judgments were being made on the weapons and not their wielders. ‘Conventional rockets good, nuclear and ballistic missiles bad’ was their simplistic thinking, without realising the overlap and without reading the MI6 runes about Saddam and his regime. Why were copies of Republic of Fear not placed in the red boxes of Clark and Trefgarne and Waldegrave?

  For the numerous Tory ministers who visited and courted Iraq in this period, the country was simply a marvellous trading opportunity. That it was a tyranny with an agenda which extended to the destruction of its neighbours gave them no pause at all. Alan Clark could at least justify his position on the crude basis that it was no bad thing if unpleasant Arabs kill each other, and it was even better if Britain made money out of it. William Waldegrave, the Fellow of All Souls, shrank from such uncouth honesty. His officials were becoming alarmed: by February 1989 their internal memos recorded their understanding that Iraq was developing a nuclear capacity and their belief that the machine tools were ‘essential for the production of nuclear weapons’. Senior F.O. mandarin David Gore-Booth sent Waldegrave a memo stating that he was ‘distinctly uncomfortable’ at the prospect of British machine tools contributing to Iraq’s nuclear programme. The minister wrote in the margin, in spidery hand, this pearl of moral absolution: ‘Screwdrivers can be required to make hydrogen bombs!’ This personal ‘Eureka’ echoed around the doors of the Foreign and Commonwealth Office. It was repeated like a mantra in their internal memos: ‘Please note the minister’s comment that screwdrivers can also make nuclear bombs’.

  What really did for William Waldegrave was not the poverty of his thinking but his terror of sharing it with Parliament or the public. It was he, not Alan Clark, who insisted that the changes to the Guidelines must be kept secret – because, Scott suggests, he was too afraid to defend them. He personally devised ‘a form of words to use if we are now pressed in Parliament over the Guidelines’. They were to say: ‘The Guidelines on the export of defence equipment to Iran and Iraq are kept under constant review, and are applied in the light of the prevailing circumstances, including the cease-fire and the developments in the peace negotiations’.

  This was a masterpiece of paltering equivocation. It was not so much economical with the truth as positively parsimonious with it. How, under this formula, could MPs ever divine that the guidelines for defence sales had tilted to Iraq so drastically as to allow a vast range of military equipment which was being withheld from Iran? Scott concluded there was a ‘deliberate failure’ t
o tell Parliament the truth about arms sales policy, and that ‘the overriding and determinative reason was fear of strong public opposition’.

  It was serious enough for a government to hide the tilt to Iraq from Parliament, but even more serious to attempt to hide it from a criminal court where it was relevant to the defence of men facing serious charges. In this respect, the DTI evidence was brazen. A licensing official was put up as a prosecution witness to say on oath: ‘if we approved a licence to Iraq it would not be for military or military-related goods. If it were for straightforward general engineering, no military involvement, then there was a possibility a licence would be approved, but if there was any military element to it then a licence would be refused.’

  The truth, to the DTI’s knowledge, was quite the contrary: massive exports to Iraq with a military element had been regularly approved. The DTI had actually sold £987 million worth of hightech military equipment to Iraq’s defence ministry and its army and airforce in the years prior to 1990, throughout the period when the Howe Guidelines were ostensibly in operation. Even during its war with Iran we sold a £4 million battlefield communication system for five hundred stations; we sold millions of pounds’ worth of jet engines and navigation equipment for Iraq’s jet fighters; night-vision equipment, a ‘quick-fire artillery control system’ and ‘hostile fire indicators’ for the army; while Racal and Plessy won multi-million pound contracts to supply ‘battlefield encryption units’ to encode messages during the fighting. The list went on and on, ranging from a computer command control for the airforce to diagnostic testing kits to check whether soldiers had AIDS. (This was said to be a ‘humanitarian exception’, although Iraq’s punishment for its soldiers who tested positive would not have been humane.)