UK government manipulated legal justifications for Iraq war

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Straw denies war advice claims

Matthew Tempest, political correspondent
Thursday March 24, 2005

Guardian Unlimited

The foreign secretary, Jack Straw, today denied that the attorney general, Lord Goldsmith, was leant on to change his view on the legality of war with Iraq.
Mr Straw said it was "tendentious" to infer from a Foreign Office lawyer's resignation letter, published yesterday, that the attorney general changed his mind and decided military action was legal just 10 days before the invasion.

Mr Straw was questioned by MPs after the letter from Elizabeth Wilmshurst, former deputy chief legal adviser to the Foreign Office, said the attorney general thought the war to be illegal until March 7.

In a tense Commons chamber, Mr Straw said it was a "wholly tendentious claim" to read Ms Wilmshurst's resignation letter as proving the attorney general changed his mind to support the legal case for war. He said the letter "showed nothing of the kind".

Mr Straw insisted the only thing that changed in March 2003 was that it became clear there was no coalition consensus for a second UN resolution.

He stopped short, however, of saying categoricallly that the attorney general had not changed his mind before issuing his final statement on March 17 that the war would be legal.

Robin Cook, Mr Straw's predecessor at the Foreign Office, pressed him on whether the attorney general's opinion changed between September 2002 - the adoption of UN resolution 1441 - and March 2003, the start of the war.

Mr Straw replied: "What is the case is that before the passage of resolution 1441 there was a widespread view that military action would be wholly ill-advised and could be unlawful, but that was changed by the passing of 1441."

The foreign secretary said that "what changed between March 7 and March 17 was that it became very clear that that consensus [at the UN] was not possible."

A passage left out of yesterday's release of the letter - but quoted in today's Guardian - said Lord Goldsmith had adopted "the official line" for his final March 17 advice approving the war but that this view had "changed" from his opinion 10 days earlier.

The letter was initially released in censored form under the Freedom of Information Act. It was written on March 18 2003 - the eve of the invasion - and described military action as a "crime of aggression ... detrimental to the international order and the rule of law".

The suppressed passage states that Ms Wilmshurst's view "accorded with the advice that has been given consistently in this office" before and after UN security council resolution 1441 was agreed in November 2002. Ms Wilmshurst wrote that it was also Lord Goldsmith's view until March 7, when he sent a 13-page written legal opinion to Tony Blair.

The publication of Ms Wilmshurst's full letter has prompted the Tories, Liberal Democrats and Labour opponents of the war to demand the full legal advice now be published.

Mr Straw repeatedly rejected this call in the Commons, saying it would go against the provisions of the Freedom of Information Act, and set a precedent for future confidential legal advice to be published.

However, Clare Short, another opponent of the war who finally resigned from the cabinet after the invasion, told MPs that by failing to publish the full advice, the government had "misled parliament".

Mr Straw said Lord Goldsmith's opinion was that the legal basis for war came from Iraq being in breach of resolution 1441, combined with earlier resolutions 678 and 687.

The Liberal Democrats said that Kofi Annan, the UN general secretary, had declared the war illegal. Mr Straw countered that the attorney general's opinion had been "widely shared across the world".

The government has consistently refused to divulge its privileged legal advice, even when recently challenged over whether Lord Goldsmith's parliamentary answer of March 17 was a full opinion, a summation, or even whether it was drafted by him or by No 10 officials.

The parliamentary answer said that military action was legal because it was "plain" that Iraq was in breach of its disarmament obligations under UN security council resolutions. This, according to Ms Wilmshurst's letter, was a reversal of policy. "The view expressed in that letter," she wrote, "has of course changed again into what is now the official line."

Meanwhile veteran Labour MP Tam Dalyell, father of the House of Commons and a vocal opponent of the war, has asked that Ms Wilmshurst be exempted from confidentiality so she "might give a full public account of her arguments and reasoning about the illegality of war in Iraq". Mr Dalyell said: "Rather than have it dribble out in dribs and drabs, the time has come to make a clean breast of exactly what did happen."

Straw rejects call to publish all Iraq legal advice

Richard Norton-Taylor, Ewen MacAskill and David Hencke
Friday March 25, 2005
The Guardian

The government was challenged yesterday to publish the "entire paper trail" of the legal advice it received about the war against Iraq in light of the disclosure that the attorney general, Lord Goldsmith, believed it would be unlawful less than two weeks before the invasion.

The disclosure, which the government tried to suppress, came in the resignation letter of Elizabeth Wilmshurst, deputy legal adviser at the Foreign Office, who resigned in protest at the war.

Key passages in her letter - in which she also said the attorney general changed his view twice in the days before the invasion - had been censored but were passed to the Guardian and Channel 4 News. The suppressed text said that the attorney general "gave us to understand" that he agreed with Foreign Office lawyers that the war was illegal without a new UN security council resolution, but changed his advice twice just before the war to bring it in line with "what is now the official line".
In the wake of the disclosure, Jack Straw, the foreign secretary, was yesterday forced to answer an urgent question from the shadow attorney general, Dominic Grieve.

Mr Grieve said the government should publish the full development of its legal advice, including a 13-page legal opinion Lord Goldsmith sent to Tony Blair on March 7 2003 in which he warned that British participation in the war could be found to be illegal in an international court.

By March 17, Lord Goldsmith had come round to the view that an invasion was legal even without the second UN reso lution ministers had earlier been pressing for.

Mr Grieve described the failure to publish as "corrosive" to trust in the government.

He said: "It would be far better if the entire paper trail were to be published to reassure the public the attorney general was neither leant on to change his views for party political reasons, nor deceived by the prime minister on the facts on which war might be justified."

With attention focusing on a need for an explanation as to why Lord Goldsmith changed his mind, the former foreign secretary Robin Cook called on the government to disclose "the whole truth" - the attorney's opinions as well as why he altered them.

The former international development secretary Clare Short said the cabinet at the time had been denied access to key documents.

Sir Menzies Campbell, the Liberal Democrat foreign affairs spokesman, told the Guardian after the Commons debate that UN security council resolution 1441 - which the government finally used to justify the war - referred to "serious consequences" rather than "all necessary means", the accepted UN language for authorising the use of military force.

"1441 ... provides a rickety foundation for going to war as the attorney general appears, at some stage at least, to have accepted," Sir Menzies said. "The British government's anxiety to have a second resolution provides corroboration of the weakness of 1441."

In the Commons, Mr Straw refused to bow to pressure to disclose the paper trail. He said that when the Freedom of Information Act was being passed, no MP had objected to the attorney general's advice being exempt.

However, the exemption is not absolute and the task of ruling whether the attorney's full March 7 2003 advice should be published is now in the hands of an independent watchdog, the information commissioner, Richard Thomas.

Mr Thomas will be shown the legal advice. He said yesterday he would have to decide "whether the public interest in ... exemption is greater than the public interest in disclosure".

The foreign secretary also told MPs the government wanted a second UN resolution to achieve "consensus" at the UN, not because it needed one for legal reasons. Ms Wilmshurst's letter makes clear that this was not the view of the lawyers in his department.

Michael Foster, Lord Goldsmith's former parliamentary private secretary, who resigned to vote against the war, said the attorney general was convinced Saddam Hussein was in "material breach " of the existing UN resolutions.

"It is completely outrageous and despicable for the Tories who at the time would have gone to war without any at tempt to get another resolution at the UN to now call into question the integrity of the attorney general or suggest that he didn't believe his advice or that he wrote it under pressure from other people," he said.

Mr Foster added: "I voted against the conflict because I thought it was morally wrong. It was not his legal advice that was at fault, it was the case of whether you should go to war at all."

Leading Articles

Publish or be damned

25 March 2005


A brutal prospect now faces the British Government. It is that unless and until it publishes the full documentation behind the legal advice to go to war in Iraq, the impression will grow that it took the country into an illegal war, threw its troops into battle and at the cost of the lives of tens of thousands of civilians on the basis of a false prospectus and fluctuating advice from its senior law officer.

It's a quandary entirely of Tony Blair's own making. Yesterday in the Commons, the Foreign Secretary, Jack Straw, repeated the old mantras that convention demands that legal advice be always kept discreet and that the advice of the Attorney General was finally clear and unequivocal. But what he also accepted was that Lord Goldsmith's advice had changed in the weeks immediately prior to the war for reasons he refused to divulge.

This is no mere matter of legal niceties or party politics. We are talking here not of some minor government political embarrassment or policy point. We are talking of a country going to war and the reasons it did so. The question of the legality of that war and the Attorney General's advice was absolutely crucial to the willingness of the armed forces to undertake the campaign, of parliament's support for it and of the public's acceptance of so drastic and terrible a step.

The point of the Attorney General's advice, given finally in a summary parliamentary answer on 17 March, is that it (alongside the evidence of Saddam Hussein's weapons of mass destruction) was used to convince the country to undertake a step they might very well have refused if they had known the full facts.

The decision to go to war had been made early on. Once it was made, the Prime Minister turned to his legal officers, and his intelligence chiefs, to find the reasons to justify that decision and give him legal cover.

We now know, thanks to the evidence before the Butler review as well as the letter of resignation of the Foreign Office lawyer, Elizabeth Wilmhurst, finally revealed this week, that the Government's legal officers initially took the view that an invasion of Iraq could not be legally justified on either grounds of self defence or on the basis of the resolutions of the United Nations, without further authority from the Security Council.

"My views," said Ms Wilmhurst in a paragraph deliberately blanked out by the Government when it released the letter in which she said she could not go along with a war she regarded as illegal, "accord with the advice that has been given consistently in this office before and after the adoption of UN Security Council resolution 1441 and with what the Attorney General gave us to understand was his view prior to his letter of 7 March."

It is that 13-page letter of 7 March that the Government refuses to release, although we know, partly from the evidence to Lord Hutton, that it was full of caveats about the war. Those doubts led the Attorney General to insist that the Government put in writing its assurance that there was real proof that Saddam Hussein was in breach of the terms of the UN resolutions demanding he disarm.

His advice, in the words of the Hutton report, "did require the Prime Minister, in the absence of a further UN Security Council resolution, to be satisfied that there were strong factual grounds for concluding that Iraq had failed to take the final opportunity to comply with its disarmament obligations under relevant resolutions of the Security Council and that it was possible to demonstrate hard evidence of non-compliance and non- co-operation with the requirements of Security Council Resolution 1441, so as to justify the conclusion that Iraq was in further material breach of its obligations."

Ten days later, Lord Goldsmith gave his final verdict in a written answer to Parliament shorn of all caveats and any doubts that the Government did have the authority of the UN to go to war.

What changed his mind in those 10 days? No new evidence of Saddam's intentions or weaponry had been found. The UN inspectors said they needed more time. A second resolution was failing.

Jack Straw says that a lawyer has a right to change his mind or to firm-up his opinions. Robin Cook, the former Foreign Secretary, suggests that it was not the evidence but the failure of a second resolution and the US military timetable that was forcing the legal advice to back it.

At this stage we can't know, not for certain. All we do know is that this country went to war on the basis of intelligence that proved to be deeply flawed, if not deliberately manipulated, and a legal advice that mysteriously altered from the equivocal to the certain in the last days before the invasion.

Only full disclosure can begin to answer some of the questions raised by that enterprise. Parliament can insist on publication, so can the Information Commissioner, charged with overseeing the Freedom of Information Act. Both should act now. This is too important an issue to be pushed aside with cavils about precedent and the proprieties of an election that has yet to be called.

Goldsmith 'failed duty to MPs' by withholding advice on war

By Marie Woolf, Chief Political Correspondent
26 March 2005


The Attorney General faced accusations of failing in his "constitutional duty" to advise Parliament as MPs called him to account over his legal advice on the war on Iraq.

Lord Goldsmith was warned yesterday that he could face an inquiry by Parliament's watchdog if he ignores MPs' demands to publish the background to his advice that war would be legal.

MPs have dredged up precedents which show the Attorney General must advise Parliament on legal matters - a duty which previous prime ministers have ruled is as important as advising government.

The Attorney General now faces calls to attend the Commons to explain the advice he gave and release the factual papers behind his legal view.

MPs accused the Prime Minister of deliberately eroding Lord Goldsmith's duty to Parliament and using him like a personal barrister.

Sir Menzies Campbell, the Liberal Democrat deputy leader and a senior barrister, said: "It is accepted that the Attorney General has dual responsibilities to the Government as its principal legal adviser and to Parliament as a guardian of the public interest. Under this government it appears that the second of these has been eroded."

Alan Beith, the chairman of the Constitutional Affairs Committee, said: "I see no reason [why] Parliament shouldn't ask for the same advice [Lord Goldsmith] provided for the Government on the legality of war."

Adam Price, the Plaid Cymru MP, plans to refer Lord Goldsmith to the parliamentary ombudsman if he fails to answer written questions tabled in the Commons about the legality of war. "The Attorney General has a constitutional role as a legal adviser to Parliament. He will now have to answer these questions which the House authorities have already accepted as valid," he said.

The Government has repeatedly refused calls from MPs from all parties for the release of the legal advice on the war. They now plan to turn their fire on Lord Goldsmith, citing his historic duty to provide legal advice to the Commons.

In 1963, Sir Harold Wilson stated: "It is [the attorney general's] duty to advise the House on legal matters - a duty going beyond his responsibility to this government and the Crown."

In 1946, Clement Atlee said "parliamentary duties should be the law officers' priority".

Lord Goldsmith accepted his duty to Parliament on 10 March 2003, only days before he expressed his "clear view" that war would be lawful under United Nations resolution 1441. He made a definitive statement that war would be legal in a parliamentary answer published on 17 March. But he has avoided calls to publish the full legal advice - including the paper he prepared for Tony Blair on 7 March in which he is understood to have stopped short of saying war would be legal.

MPs believe they have the right to see papers relating to his change of heart. After a ruling by the parliamentary ombudsman, MPs can demand the factual background papers relating to parliamentary questions. Lord Goldsmith will now face calls to release the papers behind the parliamentary answer of 17 March on the legality of war.