The Iraq poison in the body politic
Published in: Daily Mail
The crisis of credibility over the government's case for war against Iraq appears to be deepening by the day. Demands are mounting for the Attorney-General, Lord Goldsmith, to publish his full opinion on whether the war was legal. Yesterday, the former Tory Prime Minister John Major added his voice to such calls on the basis that the boil had to be lanced.
The weekend papers were heaving with allegations that Lord Goldsmith was leaned on to change his advice following the collapse of attempts to obtain a second UN resolution explicitly sanctioning war. This commotion was ignited by demands from defence lawyers in two court cases to see his full opinion.
The first was the aborted official secrets case against the former GCHQ official Katharine Gun, who was charged with leaking an email requesting the UK's help in bugging six 'swing' countries whose votes were crucial on the second resolution. The second is the forthcoming case against five peace activists charged with criminal damage at RAF Fairford.
The reason this will not die down is the public unease about going to war without the UN's explicit authorisation. The failure to uncover any WMD and the resulting rows over intelligence have caused many to believe we were taken to war on a lie.
Since Lord Goldsmith refuses to divulge his full advice, suspicions have grown that the government pressurised him to change it to support the war. In the circumstances, such concerns are understandable. But if one actually looks at the facts and applies a modicum of common sense, the situation appears rather different.
Take the legal opinion Lord Goldsmith actually published just before the war. Although this is merely a summary, it presents his argument clearly enough - and it's pretty persuasive.
It rests on the combination of three UN resolutions. The first one, 678, authorised war against Iraq in 1991 to eject it from Kuwait. The second, 687, made it a ceasefire condition that Iraq had to eliminate its WMD programme. If Iraq didn't do so, it said, the authority to go to war would be revived. And the third resolution passed in 2002, the famous 1441, decided Iraq was in breach of 687.
So the permission to go to war in resolution 678 was indeed revived. It follows, therefore that the pressure for a further 'second' resolution after 1441 was not so much legal as political, because countries such as France no longer wished to be bound by the legal logic of the UN's own Iraq resolutions.
Robin Cook, however, claims the legal advice to the Foreign Office is superior to this opinion by the Attorney-General. But Lord Goldsmith's advice was immediately backed up by the Foreign Office. In a separate document which has received virtually no press attention, the FO fleshed out exactly the same argument in greater detail.
And as I can attest from my own experience, it is unlikely that the FO was simply dragooned into line, since it had told me much the same when I asked it for guidance about the legality of any possible war way back in the summer of 2002.
Clearly, there has always been much dispute among lawyers - along with intelligence officials, military officers and others - about the legality of the war, causing the resignation of the FO's former deputy legal adviser Elizabeth Wilmshurst who thought the war was illegal. In these circumstances, it would not be surprising if Lord Goldsmith originally was - as has been reported - equivocal in his initial advice. It is possible that he might have said it would be better to have a 'second' UN resolution to settle the matter beyond any doubt.
But if he did originally say something like this - so what? The idea that government lawyers take a fixed and unalterable position from day one, regardless of changing circumstances, is a fantasy. On the other hand, if such internal thought processes are revealed, everyone can merrily pick them apart, rendering future advice impossible. Which is precisely why they are not revealed.
The problem for the government, however, is that in breaking with this convention and revealing part of its advice - as with its partial use of intelligence -it has made a rod for its own back.
It has enabled defence lawyers, in particular, to make much political hay. For it is hard to see how, in either the Gun or Fairford cases, Lord Goldsmith's advice is relevant.
The claim that the prosecution dropped the charge against Mrs Gun because the government would have been embarrassed by publication of Lord Goldsmith's original advice is absurd. Mrs Gun leaked secret documents to prevent the 'swing' states from supporting the second resolution, and thus to stop the war. Whether or not Lord Goldsmith thought the war was illegal was therefore irrelevant to the case against her, and so there is no reason to suppose the court would have required his opinion to have been produced.
Indeed, claims that the prosecution decided to drop the case because this demand had been lodged hours earlier sit distinctly oddly with the Guardian's accurate disclosure six days previously that the prosecution intended to drop the case the following week.
Given that it believed Mrs Gun intended to defend herself by claiming she had merely wanted to prevent unnecessary loss of life, it is much more likely that the prosecution concluded that, in the current anti-war atmosphere, no jury would convict her.
Lord Goldsmith's advice is similarly irrelevant in the Fairford case, where peace protesters claim they need it to prove they disabled trucks and fuel tankers to prevent an 'illegal war'. But whether or not Lord Goldsmith thought the war was legal surely has nothing to do with whether they allegedly caused thousands of pounds of damage.
In other words, this is not so much a legal point as a politically motivated stunt. And indeed, this whole furore is more about politics than law. The real running sore is the opposition to the war and the collapse of trust by the public in the government's good faith. And for this, it must itself take a large part of the blame.
Having politicised the civil service and judiciary and destroyed public trust through spin and propaganda, the government pursued a legally unnecessary 'second' UN resolution. When that failed, panicking over its failure to persuade the country of the case for war it unwisely threw a few bones of intelligence and legal opinion to the public. But far from quieting popular opposition, this merely inflamed the beast of public disbelief and fed an apparently insatiable appetite for political blood.
The outcome is that neither the government, nor the intelligence services, nor the law officers are now believed. Intelligence officials can leak official secrets and privy councillors betray their oath of office with impunity, as no action will be bought against them for fear of falling foul of such widespread cynicism.
In short, the compact between government and governed has spectacularly fractured. This is nothing less than a threat to the rule of law and the defence of the realm, and spells the risk of paralysis in the very processes of government itself.