John Kampfner :: author, broadcaster & commentator

Comment: Blair’s legal case for war was sexed up too
The Sunday Times, November 21st 2004

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 also honesty.

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 unconvincing.

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 skill.

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.

This article first appeared in The Sunday Times and may not be reproduced without permission.