Bugging allegations by Katharine Gun and Clare Short

I can’t in conscience avoid saying something about this week’s two great Bugging Scandals, even though if ‘bugging’ has anything to do with planting bugs (hidden microphones), neither of them turns out to have anything to do with bugging.  A sample of the assertions made in recent days by excited media, ministers, Clare Short, and others:

•   The American e-mail leaked by Katharine Gun showed that Britain was bugging the offices of the UN Missions of the non-permanent members of the Security Council during the negotiations last year for a second resolution to authorise war against Iraq.
• The American e-mail leaked by Ms Gun was an invitation to British intelligence services to help them do some more bugging of the offices of the UN Missions (etc.)
• The leaked e-mail has just been published in full for the first time in a major exclusive by [delete whichever newspaper does not apply].
• If the American e-mail had been put into the public domain at the time, it might have caused such shock that it would have prevented the war and saved countless lives.
• The charges against Ms Gun have been dropped because her defence would have forced the Attorney-General to reveal in open court the full text of the advice he gave to the government in the run-up to the war in the spring of 2003.
• The advice of the Attorney-General to the government is never made public.
• Clare Short’s recollection of having seen, when she was a Cabinet minister, transcripts of Kofi Annan’s conversations in top secret intelligence reports shows that British intelligence was bugging his office.
• The revelation that Kofi Annan’s telephone calls were being intercepted came as a profound shock to him and his officials.
• Mr Scott Ritter, tireless propagator of the view that Iraq’s WMD had virtually all been destroyed in the late 1990s, is a former chief UN weapons inspector.
• Media reports of all this have been riddled with inaccuracy, misunderstanding, confusion and hot air.

Only one of these 10 assertions is true (no prizes for spotting which).  Those — apparently few — who have taken the trouble to read the full text of the leaked e-mail might have noticed that it informs its British recipients that American intelligence is "mounting a surge particularly directed at the UN Security Council (UNSC) members (minus US and GBR of course) for insights as to how to membership is reacting to the on-going debate RE: Iraq" so that US policy-makers will be better informed and thus better able to get results favourable to US aims:  there is no request for British help with or participation in this.  The message also asks British intelligence ‘analysts’ (not those who plant bugs) to make a special effort to look out for information about then current Security Council debates and votes in the material they go through.  The message was in fact published in the Observer in early March, 2003, almost exactly a year ago.  Considering the rather uninteresting and unsurprising nature of its text, it’s no wonder that its publication proved to be more of a damp squib than a bombshell.  The Observer of 29 February 2004 reports that Ms Gunn was disappointed to find that her leaking of the document, which cost her a night in the police cells, the prospect of an Old Bailey trial and dismissal from her job as a Mandarin translator at GCHQ, had inexplicably not "prevented the war".  

The same issue of the Observer says in an editorial that Ms Gun "deserves our thanks and congratulations for her bravery and powerful commitment to the public interest" for having acted in accordance with her conscience in acting to try to prevent what she believed would be an illegal war.  There’s a paradox — or what is more fashionably and inaccurately called an irony — here.  Ms Gun presumably shared what is now the near-universal view that the war would be, and was, illegal because it was not approved by the Security Council.  It was not approved by the Security Council because a large majority of its members, including all but two of its non-permanent members and three of the five permanent members, were not persuaded that the use of force against Iraq was justified at a time when Blix and his fellow UN weapons inspectors wanted more time to finish the job the Council had given them and when Iraq was at last showing some signs of cooperating with them.  Yet Ms Gun’s proclaimed purpose in leaking the e-mail (admittedly only indirectly) to the media was to give such a jolt to the non-permanent members, by bringing to their notice the fact that the Americans were making a special effort to gather information about their voting intentions (shock, horror),  that they would be stiffened in their resolve not to support a resolution that would have made the war legal.  There’s not a shred of evidence that publication of the message in a British Sunday newspaper had the smallest effect on the attitudes of the non-permanents to the US-UK draft "second resolution", which they had never anyway been willing to support.  But if Ms Gun’s action had produced the intended result — failure of the resolution for lack of support because of the reverberations of the leaked e-mail — it would have deprived the war of legitimacy and thus produced the very outcome that so troubled her conscience.  She might have planned to plead in her defence, had her case gone to trial, that by robbing the second resolution of support by leaking the e-mail, and thus depriving of legitimacy the war on which Washington and London were bent, she would have forced Messrs Bush and Blair to give up their plans for war, since neither would dare to attack Iraq without UN authority.  But it would have been extraordinarily difficult for her to sustain that argument in the face of overwhelming evidence to the contrary:  Bush had repeatedly made it clear that he was going to attack Iraq and overthrow Saddam Hussein whether he had UN approval or not.  The defence strategy planned for Ms Gun looks more and more unconvincing the more you look at it.

But perhaps the most unconvincing claim made for it is that Ms Gun’s defence, since it was rooted in her belief that the war would be illegal, would have enabled her to force the Attorney-General to hand over to her lawyers for use in court the full text of his advice to the government on the legality or otherwise of the war.  The defence did apparently indicate that this is what they would ask for.  But it seems unlikely in the extreme that the judge in the case would have sustained such a demand, since the relevant document had virtually no bearing on the case for the defence.  Ms Gun had improperly copied and taken home a top secret document which she had seen in the course of her highly secret work, and given it to a friend, apparently in the expectation that the friend would pass it to the media, although that expectation is far from being established and might have been extremely difficult for the Crown to prove.  She now asserts that her motivate for committing this serious offence was bound up with her conviction that the war would be illegal if not approved by the UN and that it should be stopped.  The questions whether the war actually was illegal, or on what grounds the Attorney-General subsequently advised that it was legal, are pretty plainly irrelevant.  There is thus no reason at all to doubt the truth of the Attorney-General’s denial that the possibility of having to produce to the defence and the court the full text of his advice on the legality of the war played any part in the decision of the Crown Prosecution Service to drop the charges against Ms Gun.  It’s much likelier, surely, that the intelligence services were not prepared to agree to reveal in court extensive information about the work done by GCHQ in general and Ms Gun in particular, including perhaps a detailed exegesis of the leaked e-mail, the operations it referred to, and the extent of US-UK cooperation in communications intelligence work, all matters that would have had to be brought in evidence to prove the charge against Ms Gun or to enable her to rebut it, because of the damage that its disclosure would do to the confidentiality essential to their effective functioning, and to their relations with their American intelligence ally.   When the Crown Prosecution Service saw how little material this would leave as useable evidence on which to prove the charges against Ms Gun, they were forced to conclude that it would probably be insufficient for a conviction (especially in view of the good impression Ms Gun would make on a jury, however thin her case, both as a young, patently sincere and attractive woman, and also because a jury might well have agreed with her objections to the war and accordingly have been strongly hostile to the idea of sending her to jail for acting on them).   Also, as mentioned earlier, the CPS may have decided that it would be difficult or impossible to prove that Ms Gun had had the intention that the e-mail should be passed to the media when she gave it to her mysterious friend.  Taking all these factors together, the decision to drop the case was probably inevitable:  and not in the least sinister.

Clare Short’s case is more straightforward.  By publicly revealing (on the Today show on BBC Radio 4) highly classified information which she had seen as a Cabinet minister, she was committing (a) an obvious breach of the Official Secrets Act (which applies to everyone, regardless of what work they do and for whom, and which doesn’t need to have been "signed" to be binding), (b) a breach of the indispensable trust between the intelligence and security services on the one hand and ministers and their officials on the other which must be respected if those services are to be able to function, and (c) a breach of her Privy Councillor’s oath.  These multiple breaches were aggravated by her continued insistence on drawing wholly unwarranted conclusions from the fact that she had seen transcripts of the UN Secretary-General’s conversations, namely that this showed that his UN office was bugged and that it was British intelligence that had bugged it.  She later admitted that the "transcripts" she remembers having seen were records of Mr Annan’s telephone conversations, not of discussions in his office or elsewhere:  and since the vast majority of telephone interceptions take place between the place where a call is made from and the telephone receiving the call, mainly from satellites or taps at exchanges, that pretty well disposes of the charge that his office "must have been" bugged.  Since any interception that may have taken place would have been interception of calls made or received in New York, the strong likelihood is that it would have been carried out by the American, not British, communications intelligence agency (the NSA), a possibility that Ms Short subsequently admitted.  

Ms Short has thus produced no evidence that it was the British who intercepted the conversations.  Literally millions of telephone messages and e-mails and faxes are daily being automatically identified (by key-words and voice identification techniques picked up by banks of computers in perhaps 30 or 40 countries that have the technical capacity to do it), downloaded and sorted  according to their potential interest, translated and analysed, and the resulting analyses passed on to diplomats and officials and ministers for their background information, as well as being shared with intelligence allies.  If a bunch of transcripts passed by the Americans to their British counterparts turns out to include transcripts of Kofi Annan’s conversations, is it seriously suggested that we should fastidiously refuse to read them, perhaps returning them to the NSA with a pious request not to do it again?  To call this huge operation “bugging the Secretary-General’s office” or “spying on UN diplomatic delegations” is seriously misleading.  The monitoring of a huge volume of communications from all over the world produces a great deal of valuable information, often casting doubt on scare stories, bluffs and threats by other countries’ governments, providing useful insights into their real thinking:  often confirming the genuineness of what they are telling us even when it seems implausible.  How it’s done and, within limits, to whom, is tightly controlled by a raft of secret rules and instructions approved by ministers, and monitored by the parliamentary committee on intelligence and security.  It’s difficult to see how else it could be made more accountable or transparent without destroying its effectiveness.  Every country that can do it, does it.  Every serious country is a target as well as an interceptor, and knows it.  On the rare occasions when a specific act of interception is made public, the victim invariably professes horror and amazement, makes solemn protests, and generally puts on a magnificent act of injured innocence.  It’s pure theatre. 

Overall, this international practice, however grubby it might appear to the fastidious, is beneficial:  the better informed governments are about each other’s real intentions and fears and perceptions of their interests, the safer the world becomes.  For Britain alone to deprive itself of this information tool would not just be quixotic:  it would be daft.  (There’s also the absolute need to do it as a vital means of breaking into the communications of terrorists, who — sadly — aren’t just a figment of George W Bush’s or David Blunkett’s imagination.)

One postscript:  Clare Short was by general consent an outstanding, effective and much admired Secretary of State for International Development.  Her presence in Mr Blair’s Cabinet provided a kind of reassurance to many, especially to  Labour Party members and supporters in the country, that the government was unlikely to get up to any really sordid tricks for fear of prompting Ms Short’s resignation, thanks to her well-known conscience.  Her habit of sometimes speaking indiscreetly, forcefully, and on occasion impetuously, made her an attractive contrast with her greyer colleagues.  But semi-calculated indiscretion can easily lapse into self-indulgence fuelled by vanity and self-regard.  And, unless you’re Peter Mandelson, you can only resign once.