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<div class="nsverdanablk16" align="left"><b>The law chief who
bowed to Blair </b><br>
<span class="nsverdanagry12">John Kampfner<br>
Monday 22nd November 2004</span></div>
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<div class="nsverdanablk12" align="left">EXCLUSIVE: The <i>NS</i>
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 <b>John Kampfner</b><br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.
<br>
<br>
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. <br>
<br>
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."<br>
<br>
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.<br>
<br>
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. <br>
<br>
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.<br>
<br>
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."<br>
<br>
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.<br>
<br>
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."<br>
<br>
<br>
<br>
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. <br>
<br>
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.<br>
<br>
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. <br>
<br>
Blair took it upon himself to make a final determination that was not
his to make. <br>
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