Sunday, May 20, 2007


A more complete account of Thursday 17.05.07. Brace yourself, it's worth it.

The continuing cross-examination of Toby, and Phil’s examination, cross-examination and re-examination (the endurance of which must surely entitle each of them to some sort of legal qualification, or a badge at the very least!

Right then, here we go. It's Sunday morning, and i woke up ridiculously early for no good reason whatsoever after a Saturday night drinking and dancing with lots of lovely people to celebrate Martin and Hannah's wedding, so please excuse me if my trping's a bit squiffy or the coherence is a little in-.

Before i get started on Thursday's business, at the risk of turning this from a court diary into a gossip column, and with apologies to anyone who might think this the wrong forum for it, I'd like to state for the record that M & H (or is that too much like the high street shop? Perhaps Mannah, inna celeb couple gossip column stylie? EminH? Manadopoulos?). Anyway, the aforementioned newly married couple are two of the loveliest p you could hope to m, so three cheers for them, and here's hoping they'll continue to be jolly happy together!

Right then, again. Thursday at Bristol Crown Court, All Rise for His Honour Judge Crowther, who declared it Wig-free Thursday. Perhaps he and the other barristers just couldn't contain their envy of Ed 'no rug' Rees any longer.

Anyway, whatever the reason, a de-peruked Mr Blair’s first sally of the morning concerned a document Toby and Phil had written, titled ‘The Legal and Moral defence for the Fairford Disarmament Action.’ As the name implies, this explains why P and T felt obliged to carry out their action, and justified in doing so. Asked whether everyone had the same duty to act in the same way, Toby replied that an individual’s responsibility is dependent on personal circumstances, including the extent of their knowledge, and constraints placed on their ability to act by responsibility for dependents. Additionally, while we elect political representatives to act on our behalf to regulate the action of the state, if those representatives and the political process fail, as in this instance, to prevent the state’s complicity in the commission of crimes, then it becomes the responsibility of individuals to act, as they are able.

Mr Blair also asked whether Toby acknowledged that other individuals might not share his views, and whether his decision to act allowed for the expression of different viewpoints. His response was that while other people might not have shared his views, firstly he considered that in possession of the same knowledge as he was at the time they would probably have changed their minds, secondly that a huge number of people in the country did share his attitude, and thirdly that the contrary view was given full expression in the form of the war.

Asked why he had given a no comment response to almost all of the questions he was asked at Stroud Police station after his arrest, and why he hadn’t instead asked the police to intervene to prevent the war-crimes he expected to be committed, Toby suggested that midnight, after 18 hours in custody, wasn’t the best time to try to explain himself in that way; that he had asked the police to view the video of himself and Phil and the personal statements and other evidence they had carried with them explaining their expectations re war crimes, and that although his experience both beforehand and when in custody was that many police officers had sympathy with his views about the war, he was also aware that they were not permitted to engage in discussions that might be regarded as political.

Discussing his anticipation of the commission of war crimes, Toby said that his research had shown him that, contrary to Mr Blair’s suggestion, the cluster-weapons likely to be used were not newer and more precise than those used in previous conflicts. Indeed, the name given to them by manufacturers and the military, ‘area impact munitions’, shows that inaccuracy is designed into them. Mr Blair queried whether the use of cluster weapons against troops wouldn’t be justified, to which T responded that although the immediate aim might be legitimate, the failure rate of the weapons and their consequent effects long beyond the duration of the conflict would make their use unjustified.

The prosecution’s final question was about the reasonableness of Toby’s action. This lies right at the heart of the case, as one of the key questions for the jury to answer is: “GIVEN TOBY AND PHIL’S UNDERSTANDING OF THE SITUATION, WAS IT REASONABLE FOR THEM TO ACT AS THEY DID?” A test the jury may be asked to apply is whether, in the same circs and with the same beliefs regarding those circs, a hypothetical reasonable person would have acted as P and T did. Toby’s response, one which has been consistently given to this area of questioning, was that to his mind doing limited damage to a machine while causing no risk of harm to anyone else is an entirely reasonable act if it might help to prevent the deaths of 500,000 innocent civilians.

Ed Rees’ re-examination covered:
The leaflet question - No, Toby didn’t believe that the B52s he intended to damage would have been flying off to drop leaflets on Iraq.

The secret-weapon-in-a-bunker scenario – in the event of needing to destroy such a bunker, T believed that the US has weapons it could use that don’t contain depleted uranium.

Why T didn’t plead with the police to prevent the commission of war crimes – that was the purpose of the video and evidence pack he’d asked them to look at. Plus a prosecution for war crimes in this country would require the consent of the Attorney General [and we all know how likely it is that he’d have agreed to it!]

Why didn’t T wait for the result of the parliamentary debate on 18.03.03? – Because he had no doubt that the US intended to go to war whatever the result.

And finally, was this a symbolic act? – well, no. Putting nuts and bolts in the engine of a plane would have been a very practical way to prevent them from flying and dropping the bombs whose use constituted a war crime.

WAKE UP! It’s the interval – time to go to the bar, have a fag etc. This may or may not come as a surprise to you, but it’s a lot more interesting live. However, leaden prose is the only medium I have, so I guess I’ll plod on for now and try to give it a bit of bounce in the editing. Do try not to fall asleep again, there’s good stuff coming up…

Phil’s evidence-in-chief started with reference to his scientific background – a degree in microbiology, which would later lend weight to his observations about the effects of depleted uranium. In the meantime he said that on the basis of what he’d read and heard in the media, in March 2003 he believed that the US’ intention was to drop 3000 bombs on Iraq in the first 48 hours of ‘Shock and Awe’, ten times as many as had been dropped in the first gulf war, in an attempt to destroy Iraqi morale. He expected that the result of this would be horrendous carnage inflicted on the population and the devastation of the countryside, so he hoped that one consequence of his decision to take action to delay the start of Shock and Awe would be that more civilians could leave urban areas likely to be affected by the bombing before it happened.

He explained that he and T intended to work calmly but quickly to immobilise planes, and that he had believed that if they succeeded there was a strong likelihood that they would prevent those planes from flying for a significant length of time because of the rigorous safety checks that would then have been carried out on them.

Having confirmed that he was in agreement with all that Toby had previously said about the action, and that there was much that needn’t be gone over again, Phil went on to speak with impressive knowledge about the use of Depleted Uranium (DU) in weapons. He informed the court that whereas previously DU had been a component of armour-piercing rounds used by helicopters and tanks, by the time of Shock and Awe large ‘bunker-buster’ bombs had been developed which used DU for its pyrophoric qualities - this means that on impact DU burns and sharpens itself, so that it continues to penetrate whatever it encounters. The downside of this phenomenon is that as it burns an aerosol cloud of minute uranium oxide particles is released, which can then be dispersed on the wind. The particles settle and can be incorporated into soil and watercourses, vegetation and the animals that eat it, and the animals that eat them or their produce, i.e. people. People can also take in DU particles more directly, by inhalation. Whatever the route into the body it then accumulates, particularly in the bones, and because it’s mostly insoluble can only be partially cleaned out by the body’s own natural systems. In fact DU’s own decomposition is the major way its radioactivity in the body will be reduced, and it decays so slowly that it only becomes half as radioactive as it was originally after 4 billion years.

The evidence about the likely use of and consequences of exposure to DU that had led to Phil deciding to take his action came in various forms. There was the article in The Ecologist magazine of March ’03 which cited statements from the Ministry of Defence to the effect that DU would be used in future conflicts, patent applications filed by Lockheed Martin featuring DU in the construction of large bombs, and the parliamentary written answer by Adam Ingram, a defence minister, confirming that UK forces operating in the Gulf would have weapons containing DU in their arsenal.

Phil also cited a report by Malcolm Hooper on behalf of the Gulf War Veterans Association, which details the exposure of UK and US troops to DU during the first Gulf war and the neuro-cognitive and reproductive impairments those troops suffered; the research in Afghanistan that found DU present in cities there after the 2001 invasion by US/UK forces, and populations suffering health problems including leukaemia and birth defects at abnormally high levels; and the BBCScotland programme which found DU present in all of the 22 people whose urine was sampled in Bosnia and Kosovo, even in the urine of the cameraman who’d only gone there to make the programme.

The last thing Ed Rees asked Phil was what he thought of Toby’s view that Shock and Awe would further damage a civilian infrastructure (electricity generation, sewage and water treatment) that had already been degraded under the sanctions imposed after the first gulf war. Phil agreed, and referred to conversations he’d had with Andrea Needham, a friend who’d spent time in Iraq in the early 90s, in which she’d stated that there had been “only one ambulance working in Baghdad”. He also quoted Dennis Halliday, Former Assistant Secretary General of the UN and UN aid co-ordinator in Iraq during the 90s, who resigned from the UN and that aid programme rather than participate “[…] in the process of destroying a nation.”

And that was me trying to keep it brief!

So, the Prosecution’s turn to ask Phil some questions. Rather than relaying everything police-interview-style I’ll just try to let you know what Phil said.

He spoke of seeing photographs of Iraqi children, and reading/hearing about the planned campaign of Shock and Awe and feeling an incredible drive to prevent the horror he foresaw. Asked about whether he acted reasonably, he responded in a very similar vein to Toby earlier, saying that he believed the damage he had hoped to do was completely proportionate when weighed against the use of cluster and DU weapons and the loss of civilian life to come.

Regarding whether he should have waited until parliament had voted later on the 18th of March Phil said that the democratic process can sometimes move too slowly, and at that time he believed that the US had already made the decision to go to war, with or without the UK and regardless of any vote by the UK parliament. He cited the well-publicised war summit in the Azores at which it was widely reported that the US had finalised plans to go to war, and Donald Rumsfeld's statement on the 11th of March that the US would go it alone if necessary, i.e without a second resolution from the UN or the support of any other country. On the18th March he believed there was an immediate need to act, that an attack was imminent and that stopping a plane while it was stationary rather than taxi-ing down a runway would be safer for all concerned.

He said that he strongly believed that the B52s would be carrying weapons containing DU – citing information he had gathered from a US Airforce website, entitled ‘Meet the B25 Stratofortress’, in which DU weapons were listed among the bombs routinely carried by the planes. The use of a bomb containing DU would inevitably be a war crime, he said, because such weapons cannot discriminate between civilian and military targets and personnel. Also the effects, which would last long beyond the conflict, cannot be confined to the battlefield.

Similarly, the indiscriminate nature of cluster weapons, their failure rate, and the fact that they persist long beyond the conflict all inform his belief that the use of such weapons necessarily constitutes a war crime.

Phil acknowledged that there was a contrary view about the legality of DU weapons, but again said that despite this he thought it had been reasonable for him to act because of the huge imbalance between the damage he’d hoped to cause and the damage Shock and Awe was likely to cause.

Ed Rees’ re-examination:
About the democratic deficit, i.e. why didn’t P just accept that the government’s will was law? Because despite the very obvious public opposition to the moves toward war the govt refused requests in the summer of 2002 by both its own and opposition MPs to recall parliament for a debate on the apparent progress to war, then allowed no real opportunities to debate the issue before March 2003. Even then proposed motion didn’t provide a true opportunity to vote for or against war.

Was it unreasonable to act? No, large number of demonstrations and other evidence of public anti-war activism showed that P’s opposition was in tune with national mood. Also there was all the evidence, rehearsed above, that the attack on Iraq was imminent.

And lastly: Why are B61 DU bombs listed under the heading of Nuclear weapons in the list of bombs on the USAF’s Meet the B52 Stratofortress information? Because Depleted Uranium is radioactive, just like the materials used in other nuclear weapons.

And as if that wasn’t enough, we were presented with a surprise finish to the day – a concession by the prosecution! As a consequence of Phil’s assertion that any delay their action might have caused would potentially have resulted in fewer civilians remaining in urban areas likely to be bombed, the prosecution withdrew a suggestion made during their cross-examination of Toby that “realistically, [P and T causing] a delay would have no effect”.

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