GNN-UK profiles Whistleblowers of Mass Destruction.
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GNN-UK profiles Whistleblowers of Mass Destruction.
Mon Mar 1 14:57:05 2004
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GNN-UK profiles Whistleblowers of Mass Destruction.
 
http://www.guerrillanews.com/intelligence/doc4001.html

Guerrilla of the Week
GNN-UK, March 1, 2004

It all started on March 2nd 2003. Not the invasion of Iraq. That came eighteen days later. This battle began closer to home - for the truth as to why the U.S. and U.K. should have gone to war in the first place. The recent case of intelligence services whistleblower Katharine Gun and subsequent revelations from this week's guerrilla, the ex-U.K. cabinet minister Clare Short, have once again brought to public attention the issue of pre-war intelligence and the justifications for war.

For almost a year now, as executive director of the Institute for Public Accuracy Norman Solomon has opined the issue of spying at the UN has been largely ignored by the U.S. media. Gun first leaked the memo last year, indicating that the U.S.'s National Security Agency had begun a "surge" in eavesdropping on the "middle six" UN members whose votes may have decided the outcome of the second UN resolution Blair was seeking to justify action in Iraq. Since then a multitude of high profile individuals, from Chilean UN ambassador Juan Gabriel Valdes to ex-weapons inspector Hans Blix, have confirmed the substance of Gun’s leak.

After her arrest in March last year, the issue largely dropped from view until she appeared at the Old Bailey to face trial last week, charged with violating the Official Secrets Act. Within only 18 minutes of proceedings beginning the case was dropped, with the prosecution opting to present no evidence. Speculation exploded that some political wrangling had gone on behind the scenes, because the U.K. government may have feared even more damaging information could have been revealed in the course of the trial. The potential humiliation of a jury with anti-war sentiments acquitting Gun may have also contributed to this decision.

More revelations

Having chosen the lesser of two evils, the U.K. government may have heaved a sigh of relief. That is until Labour MP Clare Short promptly exposed its soft underbelly by announcing that British spies had been monitoring the conversations of UN Secretary General Kofi Annan. It was a well-timed attack by Short. Information the government had thought was buried when the Gun's charges were dropped, exploded in their faces anyway.

The U.K. Prime Minister Tony Blair denied interfering in the Gun case. And while authority for the decision to drop the case rested with the Attorney General, Lord Goldsmith, it was the same Lord Goldsmith who originally provided the legal justification for Britain to go to war in the first place. Goldsmith never published all of his comments on the legality of war. The government may have been forced to reveal them had the case gone ahead. It is entirely possible that any doubts expressed in his confidential advice may have compromised the government's stance.

Goldsmith claimed that, "The decision to stop the case was not in any way based on considerations in relation to (the) legality of the war, in relation to questions of disclosure of anybody's advice.....There was no longer a realistic prospect of conviction." Errant juries aside, the Attorney General argued that there was no way the government could have built sufficient evidence against Gun's "defence of necessity." Gun argued that she acted in the public interest, saying that her leak "exposed serious illegality and wrongdoing on the part of the U.S. government which attempted to subvert our own security services." Gun went on to claim that her disclosures "could have helped prevent widescale death and casualties amongst ordinary Iraqi people and U.K. forces in the course of an illegal war."

Gun's assessment could well be correct on both counts. Along with the pressure of the anti-war movement, her actions may have contributed to the Ministry of Defence drawing up contingency plans to pull out of the venture with the U.S. prior to the invasion starting. Unfortunately, it was not enough. We are left to consider in detail her first comment regarding the exposure of illegality.

Legal Questions

The legality question splits into two distinct, but linked areas: First is the issue of the Attorney General's initial legal claim: Goldsmith argued that existing legislation, namely UN resolutions 1441, 678 and 687 were sufficient to justify force. Britain badly needed this justification, as being a signatory to the International Criminal Court, engaging in a military strike without legal support would have been an extremely serious affair for not only those responsible for the decision, but also for the troops who implemented the orders. Blair may well have considered himself an enlightened leash on U.S. President Bush's aggressive foreign policy, insisting on the need for a second UN resolution in order to temper the perceived zeal of the U.S. administration to enter Iraq. But without that second resolution, Blair would have been without a rudder to steer 'America's unsinkable aircraft carrier' into war. At least not without hitting an iceberg. Instead of re-arranging deckchairs on the Titanic, Goldsmith delivered an astonishing piece of contingency legislation to give Blair just the push he needed.

His convoluted justification: "A material breach of resolution 687 revives the authority to use force under resolution 678. In resolution 1441 the security council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations to disarm under that resolution."

Everything turned on the interpretation of the phrase "serious consequences" in relation to "material breach" of resolution 687. Critics argued that this did not commit the UN to war. Goldsmith apparently saw this differently, claiming that "All that resolution 1441 requires is reporting to and discussion by the security council of Iraq's failures, but not an express further decision to authorise force." In other words, the "serious consequences" were not for the UN to decide. This seems to have, at best, paltry legal force. But it was sufficient for the U.K. government to fall back to when there was a failure in reaching any kind of consensus for the proposed new UN resolution.

Clare Short described the Attorney General’s reasoning as "a truncated opinion authorising war" and that this "appeared at the very last minute" she thought "was very odd." She also said that, shortly before war started, when she asked Goldsmith why he was so late in providing the legal framework she was "told in no uncertain terms there was to be no discussion." And in a devastating bombshell for the government, the 29th February Observer reported that U.K. military leaders were refusing to go to war just days prior to the invasion. They wanted a watertight legal case to protect the troops from being tried for war crimes in the event of an illegal military intervention. Goldsmith was under pressure not only "to give an 'unequivocal' assurance to the armed forces." Short re-entered the fray at this point, saying, "I was told at the highest level in the department that the military were saying they wouldn't go, whatever the PM said, with out the Attorney-General's advice." She went on to ask poignantly, "was the AG lent on?"

Katharine Gun's intentions in releasing her information had little to do directly with Goldsmith’s legal advice. However Liberty, the civil liberties organisation who defended Gun, demanded the disclosure of all documents related to the legality of the war. Requests for such disclosure have been made before by Greenpeace, seeking to defend anti-war activists, meeting with blunt refusal. On the grounds that Gun was revealing an illegal act, her lawyers argued that Goldsmith would have to reveal evidence as to how he came to his conclusion about the legality of war. If doubts in Goldsmith’s advice are indeed revealed, combined with the lack of WMD findings making Goldsmith's reasoning seem all the more tenuous, this could yet become a mortal blow to the government. The fact that much of his advice would have come through the Foreign Office now also sheds light on the barely noticed resignation on the eve of war of Elizabeth Wilmshurst, the former Foreign Office deputy legal adviser. She claimed that the legal team regarded the war as illegal.

In the wake of the Hutton Inquiry, Blair subsequently set up the Butler Inquiry to investigate pre-war intelligence. This has already been expected to result in a whitewash like the final Hutton Report, but Katharine Gun’s case, along with the testimony of Clare Short and key UN figures means that it will be increasingly difficult for Butler to exonerate the government like Hutton did. The fact that the new inquiry will be taking this evidence in private might give the Blair government some breathing space however. Blair could head off any further calls for investigation into these issues by legitimately claiming that they can be subsumed under Butler’s remit. Such a cut and snip move would – again – allow the government to hide its internal mechanics under the hood. The hood being the oxymoron of a government inquiry into the government.

International Issue

The second issue of legality, and the focus of Gun’s leak, is that of spying on the UN. Domestically, this kind of activity is not illegal for the U.K. government to engage in given legislation in the last ten years, including the 1994 Intelligence Services Act and the 2000 Regulation of Investigatory Powers Act (RIPA). Commentary on this is available from MI5 itself: "RIPA and ISA make provision for warrants to be issued by the Secretary of State to intercept communications, interfere with property and carry out intrusive surveillance (e.g. by eavesdropping in a target’s property). RIPA also provides for the issue of internal authorisations for Directed Surveillance (e.g. following a target’s movements) and the use of agents."

The issue is complicated however when combined with trans-national or international bodies, such as the UN and especially when any kind of 'just cause' is lacking. It is a very large gray area. Not that lack of 'just cause' has stopped the U.S or U.K. governments in the past: Despite a European Parliament report into the activities of the Anglo-American Echelon eavesdropping operation, Echelon still does not "officially" exist. Also, given how post September 11th legislation has made telecommunications providers 'wiretap friendly', the security services have a free run most of the time to eavesdrop without having to justify individual cases in the public eye. And it is the full glare of the public eye that makes Gun’s case so dangerous for the U.S. and U.K. governments.

Jeremy Paxman, presenter of the BBC's Newsnight, asked the UN's Under-secretary General Shashi Tharoor if bugging devices had previously been found in UN offices. His response was: "I'm not at liberty to tell you that, but let me tell you that we are certainly conscious that those who wish to breach our privacy might well be one step ahead of us technologically." UN spokesman Fred Eckhard, pointed out three UN treaties in particular that will have been violated if it is found that U.K and U.S. intelligence did indeed eavesdrop on UN members and staff - the 1961 Vienna Convention on Diplomatic Relations, the 1946 Convention on the Privileges and Immunities of the UN, and the 1947 "Headquarters Agreement" between the UN and the United States.

Referring to article 2 of the 1946 treaty, in particular Eckhard pointed out that it stated: "The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action." This sounds like a direct contradiction to the remit outlined by MI5 above.

In an interview with the Guardian, Hans Blix said he suspected both his home and UN office were under surveillance prior to the Iraq conflict. His concern was great enough for him to employ a UN counter-surveillance team. And in the true spirit of classic spy stories, he claims to have been shown photographs from the UN weapons office by a member of the Bush administration that he thinks could only have been obtained by underhand methods.

Which brings us to the ultimate irony of the entire situation: When deciding upon a point of law when the laws of one nation or national body interfere with another nation or national body, the case is normally decided by an international body. The UN is the premier international body for dispute resolution. Who then will act in arbitration between the ("irrelevant") UN and the U.S-U.K. axis? And if Blair says "I'm not going to comment on the work our security services do," then who will comment? Riding roughshod over international law it seems, has never been so easy for the world's greatest powers.

But there is hope. As Norman Solomon of the IPA said after the charges against Gun were dropped: "The legal case against Katharine Gun ended today, but the political case against the governments of Tony Blair and George W. Bush has just begun. The illegal spying at the United Nations on behalf of an illegal war is further indication of their responsibility for a heinous war of aggression."

Danny Weston is GNN-UK's coordinator. Many of you may know him as Darios.
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