John Kampfner :: author, broadcaster & commentator

The law chief who bowed to Blair
Monday 22nd November 2004

EXCLUSIVE: The NS reveals how, on the eve of the Iraq invasion, Tony Blair and George Bush leant on Lord Goldsmith, the Attorney General, to change his mind on the legality of the war. By John Kampfner .

As Tony Blair implores the nation to appreciate the benefits of the so-called special relationship, more evidence has emerged of the extent of the Bush administration's pressure on the British government in the run-up to war against Iraq.

We already knew that the Prime Minister agreed to back George W Bush's war plans as early as April 2002. He was concerned about regime change and needed to find another reason - weapons of mass destruction - to justify military action politically and legally. What is less known is how Blair, together with the Americans, leaned on the UK Attorney General, Lord Goldsmith, to change his mind about the legality of the war. That story can now be told.

A commercial barrister and personal 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 in justifying war. Even then, his first attempt was not deemed positive enough, so at the last minute a new version was produced. If any of the doubts had been made public, Britain's armed forces could have been vulnerable to legal challenge.

So sensitive is the whole affair that Goldsmith was reluctant to speak about it during his two appearances before the Butler inquiry earlier this year. His testimony was regarded as evasive and unconvincing. Initially, he even suggested that he could not show the committee the contentious legal advice he provided to Blair on 7 March 2003, which has never been made public. The five-person committee was flabbergasted. Goldsmith gave in to their demand only after they told him they would abandon their inquiry and announce why they had done so.

Between September 2002 and February 2003, Goldsmith let it be known, usually verbally, that he could not sanction military action without specific United Nations approval. He indicated that resolution 1441, passed unanimously by the UN Security Council in November 2002, did not provide that automatic trigger, and that a further resolution was necessary.

Throughout this period, Blair was fully aware of the Attorney General's reservations. For that reason, he instructed him not to declare his position formally. When challenged by one cabinet minister in autumn 2002 as to why the government had not yet received formal advice from Goldsmith, Blair responded: "I'll ask him when I have to, and not before."

Blair, although a lawyer himself, made it clear throughout that the legalities were an unwelcome distraction. He had allowed himself to be won over to the American position. This was that resolution 687, passed in 1991 at the end of the first Gulf war, gave any permanent member of the UN Security Council the right at any point to declare Iraq in further material breach of its obligations to get rid of its WMD. The long-held British view, in common with just about every other country, was that only the Security Council itself could make such a judgement.

Meanwhile, Jack Straw, the Foreign Secretary, let it be known to his department throughout the autumn of 2002 that he disagreed with his own legal team. The lawyers took a clear and united view. At one meeting he flatly overruled them, causing them to appeal to Goldsmith to act as an arbiter. Goldsmith, crucially, told them they knew what his view was but he could not give formal advice. The implication was that Blair would not let him. The two offices work closely; usually, one Foreign Office legal person is seconded to the Attorney General. If at any point during this period Goldsmith had disagreed with the Foreign Office legal opinion, he had ample opportunity to tell them. From November 2002, all the lawyers worked on the basis that a second resolution was not just desirable but a legal requirement. That included the entire Foreign Office legal team, led by Michael Wood, whose deputy, Elizabeth Wilmshurst, resigned on the eve of war. Wood did not. In the 2004 New Year Honours List, he received a knighthood.

Goldsmith was uneasy. In late January 2003, he wrote a memorandum to Blair expressing his concerns. In mid-February, he was instructed to go to Washington to hold talks with senior American officials. The Butler report refers obliquely to how the Attorney General "met members of the US administration who as co-sponsors of the resolution [1441] had detailed knowledge of the negotiation of the resolution". He met not just his US counterpart, John Ashcroft, but a powerful behind-the-scenes figure called John Bellinger. Bellinger's formal title is senior associate counsel to the president and legal adviser to the National Security Council. He is responsible for advising on US and international law on national security, use of force, intelligence and terrorism.

After that trip, Goldsmith agreed to produce the legal advice Blair sought. His 13-page paper set out in detail the status of the various UN resolutions. He did not give a definitive view, but suggested that the government's case would have been "safer" if it had been based on a further reference to the UN on the eve of war. In his conclusion, he set out the potential for legal challenges to the government. In a break with the ministerial code, Goldsmith's advice to Blair on 7 March was not circulated to either the cabinet or the permanent secretaries of key government departments. When asked about this by Butler, the PM suggested he could not trust some members of his cabinet with such papers. Blair's answer to the committee that day confirmed its worst fears about his approach to the machinery of government and led it to conclude: "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 judgement."

A copy of Goldsmith's document was sent to the office of the Chief of Defence Staff, Admiral Sir Michael Boyce, as would normally be the case on the eve of war. He responded by saying that it was too equivocal, and that he needed a more definitive declaration if he was to commit his forces, and to ensure that they or their officers did not become liable under international law.

Goldsmith, still deeply uncomfortable, felt he could not give that definitive response. When asked about this during his hearings before Butler, he suggested it was the Prime Minister's call to make the final determination on WMD. Never before had an Attorney General felt unable to give legal direction on his own. On 14 March, as the Butler report states, the legal secretary to the Attorney General wrote to Blair's private secretary asking for confirmation that "it is unequivocally the Prime Minister's view that Iraq has committed further material breaches as specified in . . . resolution 1441". The following day, he received such an assurance that "it is indeed the Prime Minister's unequivocal view that Iraq is in further material breach of its obligations."

Blair knew that Goldsmith's advice of 7 March, if released, might not be strong enough to convince wavering Labour MPs ahead of the crucial Commons vote. That weekend, the Attorney General was asked to produce something more compelling. His final version was published on 17 March, on the eve of the debate, in the form of 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 to the Prime Minister. Contrary to the public assertions of several ministers, this was not a "summary" of the legal advice.

Blair, who knew the real story, made sure he avoided that formulation. This was a partial, tendentious account of that advice, shorn of various caveats and qualifications that Goldsmith had included ten days earlier. A qualified document had become a document of advocacy. Sexing up had become a habit.

Goldsmith was asked to appear before the cabinet on 17 March to present the case. Sitting in the chair previously occupied by Robin Cook, who had just resigned, he read out his brief statement before Blair moved the discussion on. Questions were not permitted. On the 23 occasions that Iraq had been on the agenda for cabinet discussions, this was the first time a member of the cabinet can recall the Attorney General attending. In the space of a year, a man who had shared the doubts of almost the entire legal establishment about the lawfulness of a war without an unequivocal endorsement from the UN had been prevailed upon to cast those doubts aside. In the fraught weeks of Feb- ruary and March 2003, Goldsmith told lawyer friends that his position was impossible. He wondered out loud whether he should stay in his job. He did the business, and did stay. What was published on the eve of war was not the legal advice. The legal advice of 7 March, which has never been released, did not sanction war.

Blair took it upon himself to make a final determination that was not his to make.

This article first appeared in the New Statesman and may not be reproduced without permission.