Like all former members of the Special Air Service (SAS) Regiment who write insiders' accounts of Britain's most secretive fighting force, "Mike Coburn" is officially a pariah. But the 36-year-old New Zealander-who served in the Gulf War and Northern Ireland and uses a pseudonym for protection-is also a legal trailblazer. In New Zealand's High Court last week, Coburn defeated an attempt by the British Ministry of Defence to prevent publication of his book, Soldier Five. His win removed a key weapon in the military's fight to stem a rising tide of SAS books and films.
Judge Peter Salmon's decision invalidates the four-year-old practice of obliging SAS members to sign lifetime confidentiality contracts. It may also hasten the end of the code of silence that surrounds SAS missions. The defeat must be particularly galling for the British military, which spent an estimated $NZ1.5 million trying to muzzle the book-even though its topic, the bungled Gulf War reconnaissance mission B20 (Bravo Two Zero), had already been extensively discussed in print. Coburn, who served in that ill-fated January 1991 patrol, was wounded, captured and tortured. He told the court he believed he and his seven comrades had been judged "expendable." Instead of the hero's welcome he expected, Coburn was told on his return that the team's five survivors were "lucky not to be court-martialed" for the mission's failure.
There were more shocks to come. The supposedly secret mission was exposed in unprecedented detail in the 1992 autobiography of British Gulf War commander General Sir Peter de la Billire. Then two other B20 survivors, under the pseudonyms Andy McNab and Chris Ryan, wrote accounts of the mission-both international best-sellers-that Coburn regarded as highly fictionalized. Upset by the suggestion that the SAS had not attempted the immediate rescue members are told to expect, and offended by slurs on his comrade Vince Phillips, who died in the desert, Coburn agreed only reluctantly to sign one of the new confidentiality contracts in late 1996. He was allowed neither to seek legal advice nor to keep a copy of the contract.
Anxious to set the record straight, Coburn wrote Soldier Five after leaving the army in 1997. After the Ministry of Defence was sent a copy of the manuscript for vetting in late 1998, the SAS set about ensuring that Coburn's contract was enforced. Coburn told Time there is "a complete alignment" between the senior SAS officers whose Gulf War actions he criticizes in the book and the officers who command the regiment today.
In an internal memorandum obtained by Time, the SAS acknowledged that since the B20 mission was "probably the most written about, reported on, and debated patrol action in the history of the British Army ... we could hardly be on weaker ground for this first challenge to the authority of the contract." However, it went on, failure to act would foster suspicion among defense chiefs in Britain and allied nations that "we cannot enforce the enduring confidentiality of soldiers who are currently serving." After intense lobbying, the regiment secured support for its action against Coburn from a committee of five senior government ministers, chaired by Prime Minister Tony Blair. The memo commented that this support was "truly remarkable."
Legal precedents dating from the 1988 "Spycatcher" case in Australia, in which the British government also failed to prevent the disclosure of official secrets, allowed the trial to be conducted under British law in a court in New Zealand, where Coburn was planning to publish the book first. The Ministry of Defence decided to take Coburn on knowing that its position was weak, but convinced of the need to demonstrate how seriously the military views the contracts.
The ensuing High Court hearings were so sensitive that SAS witnesses, referred to only by letters of the alphabet and accompanied by bodyguards, gave evidence from behind screens, often in a locked courtroom. Last week Judge Salmon found that the process under which Coburn signed the agreement had been unlawful; that the contract could not be the subject of a military order; and that binding Coburn to lifelong secrecy had "profound implications for the defendant's private law rights." The Ministry of Defence is likely to appeal the decision.
The SAS culture appears to be showing signs of strain. While Coburn is ostracized by the officers' association, he has won unofficial support from the regiment's enlisted men and from former comrades in New Zealand. The issues of how much secrecy the SAS needs, and how far the regiment should go to preserve it, remain unresolved. Says Jim Rolfe, a private defense analyst who gave in-camera evidence for Coburn: "If you need a contract to enforce an ethos, then you don't have an ethos." The SAS will no doubt face other fights against ex-soldiers with stories to sell. The battle in its own ranks could be just as testing.