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Thursday, May 25, 2006 

Further information about the (il)legality of the Iraq war revealed.

Last year in the run up to the general election there was a growing campaign for the full reasoning of the Attorney General in deciding that the Iraq war was legal to be published. After leaks of some of the information, the government published the attorney's thinking on the 7th of March 2003, which although the government at the time called it a "damp squib", showing that the attorney hadn't changed his mind after pressure from Blair, as alleged, did show at the very least that the Attorney was unsure of the basis for the legality of a military strike at the time. Now we have the attorney's thinking during the 7th and 17th of March 2003, following continued demands for it, which shows how he came to his much clearer decision that war was in fact "legal".

As the narrative sets out, the Attorney General had came to his original more equivocal decision that war might be legal after discussions with Foreign Office lawyers, Jack Straw, foreign secretary at the time, Sir Jeremy Greenstock, the British ambassador to the United Nations at the time, and members of the US administration who had been closely involved in the negotiation surrounding resolution 1441. The decision which the Attorney made on the 7th was based on the 4th paragraph of the resolution, which referred to what actions would be taken if there was a further "material breach" by Iraq, referring to the 11th and 12 paragraphs for what actions the security council should take. Paragraph 12 is the key. It says that the council should convene immediately in order to
consider (my emphasis) the situation. The wording is crucial, in the attorney's judgement, as it is only consider, rather than decide (my emphasis again). The attorney took this to mean that the original resolution, that authorised the original war against Iraq in 1990, could then be revived so that military force was legal.

Perhaps what is more key here is that Lord Goldsmith only took the advice of those who were in favour of war, whether they got the second resolution or not, except seemingly for the FCO lawyers, who were apparently opposed. Elizabeth Wilmhurst, the foreign office's deputy legal adviser resigned over Goldsmith's decision. Both Jack Straw and Jeremy Greenstock were by this point resigned to war, if they had been opposed at any time in the past. The US administration had originally not wanted to take Iraq back to the security council, but was eventually apparently persuaded by the dual efforts of Colin Powell and Tony Blair, mainly because Blair needed UN authorisation to sell any military conflict both to his own party and to the British public. Blair had seemingly already signed up to regime change at any cost, as the Downing Street memos have since made clear. The exercise at the UN was merely window dressing for what was going to come sooner or later anyway. On the eve of war Donald Rumsfeld had said that the US may well go it alone, as they were worries both at home and in Washington that Blair would not win the vote that parliament was given to authorise armed conflict. At the end, it was Lord Goldsmith's advice, along with the even more enthusiastic support for war from the Conservatives that got the vote for military action through.

Did the Attorney General then change his mind? To an extent he did, as the narrative released today makes even clearer. His 7th of March advice stated that a second resolution was the "safest" option, but that his legal analysis may change if a second resolution was not achieved. Change it did, but not because of the failure to achieve a second resolution but because of the meetings Goldsmith had at Downing Street where the Chief of the Defence Staff demanded "clear indication" of the legal position for the military forces, as paragraph 19 of the narrative makes clear. In Paragraph 20 it is recorded that the Legal Adviser for the Ministry of Defence asked the Legal Secretary to the Law Officers to clarify and make sure that the Attorney General was certain in his advice that action by the UK would "be in accordance with national and international law". Paragraph 21 shows the Treasury Solicitor made clear to the Attorney General that the legal advice had to be clearer. Pressure on Goldsmith was rising. Paragraph 24 shows the changing of Goldsmith's position. Rather than now thinking that a second resolution was the safest option, he had come round to the "better" view that there was a lawful basis for the use of force without a second resolution.

What then made Goldsmith come round to this better view? The second resolution was not forthcoming, which would have been "safest", but there had been no further material breach, and its arguable whether there had been one at all. Iraq was still involved in a tenuous co-operation with the weapons inspectors, and the missiles which exceeded the distance allowed under previous resolutions were being destroyed. Nothing had changed on the ground, or since Hans Blix's last report to the security council. What had changed is that the military and other parts of government needed something more concrete than his wishy-washy advice on the 7th, as President Bush was determined not to move back the war any further. Blair needed the vote in parliament to go his way, and the advice of the 7th was not convincing many backbench Labour MPs, and the military needed clearer advice to be sure that action was "legal". Goldsmith seemingly erred on the side of caution, and came round to the opinion that the better view was that a second resolution was now not needed, despite him say that getting one would be safest only days earlier. Paragraphs 28 and 29 show that on the 14th of March, after Goldsmith had revised his previous advice, he wrote to the Private Secretary of the Prime Minister to make sure that Blair's view was that Iraq had committed further material breaches. The next day the Private Secretary wrote back, confirming that the prime minister was of that view. This led to the Attorney over the weekend (15 and 16th) drawing up his new opinion of the legality of war in full, which was then given to parliament as a written statement on the 17th.

Was it pressure from Blair or from the military that made Goldsmith alter his opinion? Without further information, and Phillipe Sands wonders whether there is still further background data which has not yet been released that shows how Goldsmith came to change his opinion to being much more amenable to the pro-war position, then it's really impossible to tell whether he simply succumbed to pressure from both or was directly told by Blair to change his mind. As such, we're really still in the dark over the bigger picture, and both pro and anti-war camps can still argue that they are respectively in the right over the issue of the legality of the war.

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