Richard Norton-Taylor and Ewen MacAskill Thursday February 26, 2004 The Guardian
Dramatic new evidence pointing to serious doubts in the government about the legality of the war in Iraq was passed to government lawyers shortly before they abandoned the prosecution of the GCHQ whistleblower Katharine Gun.
The prosecution offered no evidence yesterday against Ms Gun, a former GCHQ employee, despite her admitting that she leaked information about an American spying operation at the UN in the run-up to the war.
She said she acted to try to prevent Britain illegally invading Iraq. But the prosecution at the Old Bailey said there was no "realistic prospect" of convicting her. She was arrested nearly a year ago and charged eight months later under the Official Secrets Act.
The leading prosecutor, Mark Ellison, said it would not be "appropriate" to go into the reasons for dropping the case.
But the Guardian has learned that a key plank of the defence presented to the prosecutors shortly before they decided to abandon the case was new evidence that the legality of the war had been questioned by the Foreign Office.
It is contained in a document seen by the Guardian. Sensitive passages are blacked out, but one passage says: "The defence believes that the advice given by the Foreign Office Legal Adviser expressed serious doubts about the legality (in international law) of committing British troops in the absence of a second [UN] resolution."
It is understood that the FO legal team was particularly concerned about the lack of a second UN resolution authorising the use of force and pre-emptive military action.
Elizabeth Wilmshurst, a former deputy head of the legal team at the FO, has confirmed publicly for the first time that she resigned last year because she was unhappy with the attorney general, Lord Goldsmith's legal advice to the government on the legality of the Iraq war.
He argued that the series of consecutive UN resolutions provided a legal basis for the military action. But Ms Wilmshurst told the Guardian: "Some agreed with the legal advice of the attorney general. I did not." She refused to discuss the details of the advice.
She left on the eve of the war after 30 years on the FO's legal team, and deputy legal adviser since 1997. She is now at the Royal Institute of International Affairs, specialising in the legality of military intervention.
Yesterday James Welch, a solicitor for the civil rights group Liberty and Ms Gun's lawyer, said the final decision to abandon the case was taken after they had warned the prosecution that they would demand the disclosure of the attorney general's advice on the legality of the war.
"Our case was that any advice the government received on the legality of war was relevant to Katharine's case and we were prepared to go before a judge and argue for it to be disclosed," he said.
Ms Gun, 29, said after her brief appearance at the Old Bailey: "I have no regrets and I would do it again."
In an interview with the Guardian she described her reaction when she first saw the US National Security Agency email asking for GCHQ's help in bugging the offices and homes of UN diplomats.
"I thought, 'Good God, that's pretty outrageous'."
She felt she had no choice but to do what she did. The UN was being undermined. She thought about the destruction of people's lives in Iraq.
"I didn't feel at all guilty about what I did, so I couldn't plead guilty, even though I would get a more lenient sentence," she said.
She remembered her husband telling her: "Do nothing and die, or fight and die."
But the prospect of a criminal trial, "of having the whole government machine after you", was scary, she said.
Asked at a press conference what her advice would be to anyone responding to the recently announced recruitment to the intelligence services, she said: "The intelligence services do important and necessary work, but listen to your conscience is what I would advise."
She continued: "I know it's very difficult and people don't want to jeopardise their careers or lives, but if there are things out there that should really come out, hey, why not."