November 21, 2004
Comment: John Kampfner: Blair's legal case for war was sexed up too
When a prime minister commits men and women to die in the service of their
nation, he carries a responsibility to demonstrate not only judgment but
The controversy surrounding Tony Blair and Iraq has focused on the dossier
produced in September 2002 that misrepresented the threat posed by Saddam
Hussein's weapons of mass destruction. That has been a distraction. More
important is what happened from January 2003 until war in March. Central to
this is the legality of the war, a matter not, as some government loyalists
assert, an obsession of leftist journalists and MPs but something that
exercises the pillars of the Establishment.
The story of Blair, Lord Goldsmith, his attorney-general, and the legal
advice has leaked out in dribs and drabs. I have had conversations that
cast further light on a troubling chain of events. The evidence suggests
that Blair, along with the Americans, leant on Goldsmith to change his
mind; that the legal advice privately presented to Blair did not explicitly
sanction war; and that the later version of that advice on which MPs based
their decisions 10 days later was wholly different.
A commercial barrister and friend of the Blairs with little experience of
international law, Goldsmith shifted his position on the legality of war
not once, but twice. He was asked by Blair to stay silent until he could
guarantee that his advice was helpful to justifying war. Even then his
first attempt was not deemed positive, so a new version was produced. If
the doubts had been made public, our armed forces could have been
vulnerable to legal challenge.
Between September 2002 and February 2003 the attorney-general let it be
known, usually verbally, that he could not sanction military action without
specific United Nations approval. He indicated that resolution 1441, passed
by the security council in November 2002, did not provide that automatic
trigger and that a further resolution was necessary.
Throughout, Blair was aware of Goldsmith's reservations. For that reason he
instructed him not to declare his position formally. When challenged by one
cabinet minister in autumn 2002 why the government had not yet received
formal advice from Goldsmith, Blair responded: "I'll ask him when I have to
and not before."
The Foreign Office legal team were united in their view that a second
resolution was not just preferable but essential. At the outset Goldsmith
indicated to them that he shared their view. Blair, like the Bush
administration, believed the legalities were an unwelcome distraction.
Goldsmith's problems began when it became clear that the diplomatic efforts
of the UK had failed and that a second resolution would not be secured.
In mid-February he was asked to go to Washington to meet US officials.
There he met a powerful behind-the-scenes figure called John Bellinger. His
title was senior associate counsel to the president and legal adviser to
the National Security Council, responsible for advising on legal aspects of
national security. Goldsmith was sent so that Bellinger, in the words of
one official, could "put some steel in his spine".
On his return he began to put together the legal advice. His 13- page paper
set out in detail the status of the various UN resolutions. He did not give
a definitive view but suggested the government's case would have been
"safer" if based on a further reference to the UN. In his conclusion he set
out the potential for legal challenges to the government. In a break with
precedent, that advice to Blair on March 7 was not circulated to the
cabinet or to the permanent secretaries of key government departments.
Goldsmith's document had gone some way to helping Blair's cause, but not
far enough. A copy was sent to Admiral Sir Michael Boyce, chief of the
defence staff. He replied that it was too equivocal and requested a more
definitive declaration. Goldsmith felt he could not give that and wrote to
Blair for an unequivocal assurance that "Iraq has committed further
material breaches as specified in . . . resolution 1441".
The following day Blair gave him such an assurance. The prime minister
feared, however, this formulation might not be enough. Goldsmith's advice
might not convince wavering Labour MPs. So he asked him to produce
something more compelling. The final version was published on March 17, on
the eve of the crucial Commons debate, as a written parliamentary answer
described as "the attorney-general's view of the legal basis for the use of
force against Iraq".
This was not the same as his formal legal advice. This was not, as some
ministers claimed, a "summary" of the legal advice. This was a partial,
tendentious account of that advice, shorn of the caveats and qualifications
that Goldsmith had included 10 days earlier. A qualified document had
become a document of advocacy. Sexing up had become a habit.
In a year a man who had shared some of the doubts of almost the entire
legal establishment about the lawfulness of a war without an unequivocal
endorsement from the UN had been prevailed on to cast those doubts aside.
Blair and Goldsmith have steadfastly refused to publish the March 7 advice.
They refuse to answer many specific questions that Labour MPs and others
have put to them on the events that led to war. So sensitive is the affair
that Goldsmith was reluctant to speak about it during his two appearances
before Lord Butler's inquiry. His testimony was regarded as evasive and
Butler and his eminent colleagues took a dim view of the way that Blair and
his coterie conducted themselves. "We are concerned that the informality
and circumscribed character of the government's procedures which we saw in
the context of policy making towards Iraq risks reducing the scope for
informed collective political judgment," they said.
The evidence was potentially devastating, but the former cabinet secretary
took the view that it was his job to set out the facts and that it was
parliament's to hold the executive to account. Blair, I am told, expressed
immense relief that Butler had chosen not to merge the two. Butler provided
Blair with a technical escape route which he exploited with customary
Blair now expresses exasperation that people have not "moved on" from Iraq.
For all the mayhem in Iraq he stands by his decision to go to war to rid a
country of a dictator. The arguments in principle for and against military
action have been passionately made. But that is a different debate.
This is also about good governance. At some point Blair will have to
account not just for his ends but also for his means. Those means included
providing legal justification for war that was, to put it mildly, anything
but watertight. Unless Blair and those around him answer each and every
question about their actions, they will not achieve the "closure" on Iraq
that they so desperately yearn for and they will not regain the trust that
they have so wantonly lost.
John Kampfner is political editor of the New Statesman and author of