The Ten Days

Tony Blair was about to make the toughest call of any Prime Minister. But he faced a race against time to marshal the legal backing for war
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Indy Politics

The document bore a single-word heading. Above the lion and unicorn crest of the British crown, it said simply: "Secret".

War on Iraq was imminent. The United States and Britain had set a deadline 10 days thence - 17 March - by which the Iraqi dictator Saddam Hussein had to comply on six key demands. If he did not, then the US would let slip the dogs of war, with Britain committed to fight at its side.

The document was not what the Prime Minister wanted to read. Its 13 pages gave Tony Blair six reasons why the war might be adjudged illegal. Worst of all, the briefing was signed "Peter Goldsmith, Attorney General", the Government's chief legal officer. It was 7 March. There were 10 days to go before war would become inevitable - and Lord Goldsmith's advice, as it stood, was a problem, a real problem.

Mr Blair took the counsel of two of his most trusted aides. The first was Lord Falconer of Thoroton, a junior Home Office minister with no brief in the area of international law, but who was a former flatmate of Mr Blair and one of his oldest friends. The other was Baroness Morgan of Huyton, Mr Blair's director of political and government relations, again with no expertise in international law. They arranged a meeting with Lord Goldsmith ...

To understand what happened in those crucial 10 days it is first necessary to know something of the curious intertwining of political, legal, intelligence and military influences which culminated in the Attorney General's statement to Parliament on 17 March 2003 that authority to use force against Iraq existed under international law.

Three UN Security Council resolutions were key here. Back in 1990, after Iraq invaded Kuwait, resolution 678 authorised war - using "all necessary means" to "enforce peace and security" - to remove Saddam's troops from the territory of his oil-rich neighbour.

The following year, resolution 687 placed continuing obligations on Iraq to eliminate weapons of mass destruction, and indicated that force against Iraq could resume if they breached these conditions.

A decade later, after the 11 September attacks on New York and Washington, the US turned its attention to Iraq once again. It was at this juncture that Lord Goldsmith had his first security briefing on the subject. It was not his natural area of strength. He had been a commercial barrister, specialising in banking, with a concern in his spare time for human rights issues. Nevertheless, with the benefit of legal advice seconded from the Foreign Office, he advised Tony Blair that there was "no justification for the use of force against Iraq on grounds of self-defence against an imminent threat".

The Prime Minister, a lawyer himself, disagreed. He had bought the US view that resolution 687 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 weapons of mass destruction. He told his Attorney General to keep quiet in public.

Two months later came the third crucial UN resolution. On 8 November 2002 the Security Council unanimously passed resolution 1441 giving Iraq "a final opportunity to comply with its disarmament obligations". It warned Saddam of "serious consequences" if he did not. The resolution was ambiguous about whether military action was legal without further resolutions; it had been carefully drafted to be vague on that point, in order to gain unanimous UN support. Two weeks later, UN weapons inspectors arrived in Iraq, for the first time in four years, as 250,000 American and British troops moved to Iraq's borders.

Saddam continued to play games, co-operating in part, but by no means fully, with the inspectors over the next three months. The chief weapons inspector, Hans Blix, repeatedly reported back to the UN with mixed verdicts on Saddam - but also expressing doubts about the veracity of some of the "intelligence" supplied to inspectors by the US and Britain.

Back in London, the Attorney General continued to express his unease. Towards the end of January 2003, he wrote a memo to the Prime Minister voicing his concerns. The following month, February 2003, Britain and America began an attempt to persuade the Security Council to pass a further resolution authorising use of force. The US Secretary of State at the time, Colin Powell, presented evidence that Iraq still had weapons of mass destruction, and Lord Goldsmith was again briefed by British intelligence services.

Then, in mid-February, he was instructed to go to Washington to hold talks with senior American officials. Revealingly, he did not only meet his US counterpart, John Ashcroft, but also George Bush's personal legal adviser on national security, intelligence and terrorism, John Bellinger.

He was still not entirely convinced. On 28 February Lord Goldsmith met Jonathan Powell, the Prime Minister's chief of staff, and Sir David Manning, his foreign policy adviser, and expressed his views. Also present was Baroness Morgan of Huyton. The next day, Lord Goldsmith was asked by Downing Street to put down his views in writing.

Saddam continued his brinkmanship. On 1 March Iraq began destroying its al-Samoud 2 ballistic missiles - the largest act of disarmament since UN weapons inspectors returned to the country five months before. "Naturally, Saddam will play his game," Mr Blair said publicly, "throwing out concessions to divide us, to try and weaken our will."

Two days later, Saddam announced he would submit a new report on VX gas and anthrax to the UN in an attempt to prove that Iraq had destroyed its entire stock of chemical and biological agents. Meanwhile, US and British warplanes continued bombing Iraqi military installations in preparation for launching a ground invasion.

7 March was a fateful day. It was then that Hans Blix told the UN that Iraq had taken significant steps to disarm. Of the destruction of the al-Samoud missiles he said: "We are not watching the breaking of toothpicks. Lethal weapons are being destroyed." There were still unanswered questions, he said, but more time was needed to complete his task - "not years, nor weeks, but months".

The same day Mohamed ElBaradei, the head of the International Atomic Energy Authority, said there was no evidence that Saddam had any nuclear weapons nor that he had been trying to acquire them; he dismissed British claims that Iraq was trying to acquire uranium from Niger or that aluminium tubes bound for Iraq were nuclear-related. On the ground, UN inspectors in Iraq told journalists it would be impossible for Iraq to meet the deadline and said that Washington and London seemed determined to sabotage their efforts.

The political response was unswerving. Mr Powell and Jack Straw, the Foreign Secretary, said they had heard nothing to convince them that Iraq had taken the strategic decision to disarm. But those opposed to war would not move either. The French Foreign Minister, Dominique de Villepin, rejected any ultimatum to Saddam so long as progress was being made by the inspectors. Mr Straw insisted that Iraq would be considered to have "failed to take the final opportunity" unless on or before 17 March 2003 Iraq demonstrated full, unconditional and immediate co-operation and gave up all banned weapons.

That same day, at his desk in No 10, Tony Blair was considering the Attorney General's memorandum. Now that that document has been leaked, we know that Lord Goldsmith, in addition to setting out the six arguments why the war might be considered illegal, gave no definitive opinion on the legality of an attack. Rather he said "the language of resolution 1441 leaves the position unclear" and insisted that a "key question" was whether there was need for an assessment of Iraq's conduct. If so, it would be up to the UN Security Council (and not its individual member states) to make it. "The safest legal course would be to secure the adoption of a further resolution to authorise the use of force." If no such UN resolution came, then a "reasonable case can be made" for war relying on the authority of resolution 678. But to do that "we would need to demonstrate hard evidence of non-compliance and non-co-operation".

That would mean the Prime Minister would have 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 ... and that it was possible to demonstrate hard evidence of non-compliance and non-co-operation". Moreover, in light of the latest reports by the weapons inspectors, Lord Goldsmith told the Prime Minister: "You will need to consider very carefully whether the evidence of non-co-operation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity."

It was a document, according to Professor Philippe Sands QC, which most lawyers would see was "written by a man who, in his heart, recognises that, without a second resolution, the war would be unlawful".

This 7 March document, with its many caveats, was never shown to a full cabinet meeting. Nor was it sent to the permanent secretaries of key government departments. When the Butler inquiry asked the Prime Minister why usual practice had been broken in this way, Mr Blair suggested he could not trust some members of his cabinet with such papers.

Three days later, 10 March, Mr Blair spoke on the telephone to Mr Blix. The Prime Minister set out a list of five or six key disarmament tasks for Iraq, which become known as "benchmarks". Mr Blair suggested that the disarmament inspections could not continue until April/ May but the deadline might be extended beyond 17 March. But he also conveyed the message that the Americans were unwilling to extend the deadline.

At the United Nations the idea of a televised speech by Saddam was being informally discussed in the Security Council. The French expressed concern that America seemed intent on acting unilaterally regardless of the length of deadline and the number of disarmament tasks. Chile and five other non-permanent members, sensing that time was running out, began looking for a compromise. It was not to come.

On 10 March - as American and British officials issued private warnings to newspaper editors that their journalists inside Iraq risked being subjected to WMD attacks - the office of the chief of defence staff, Admiral Sir Michael Boyce, had rather different concerns. The admiral had been sent a copy of Lord Goldsmith's 7 March document and had decided it was too equivocal. He needed a more definitive declaration if he was to commit his forces.

If the war was illegal, not only would British troops be potentially liable to face prosecution under an international war-crimes tribunal, but legal action could be taken against the Ministry of Defence by injured soldiers or relations of troops killed in action.

The extent of the concern was revealed by General Sir Mike Jackson, the head of the Army, who said privately: "I have spent a good deal of time in the Balkans to make sure Milosevic was put behind bars. I have no intention of ending up in the cell next to him in The Hague." Admiral Boyce instructed MoD lawyers to write to Lord Goldsmith via Downing Street seeking official reassurance that the war would be legal.

That evening a new political die was cast. President Jacques Chirac said in a television interview that France would veto the new resolution that the US and UK wanted, "whatever the circumstances". The Government seized the opportunity to blame the French.

But at this point Washington gave up on Europe. Two days later, on 12 March, Tony Blair was alarmed to discover that the US Defence Secretary, Donald Rumsfeld, had written Britain out of the US invasion plans because of the mounting political problems. It took two late telephone calls to President Bush to establish that Mr Rumsfeld had been "only trying to help".

At the United Nations, Britain's ambassador, Sir Jeremy Greenstock, spent the next two days trying to win support for the British benchmarks. But the time had passed for a diplomatic solution. Compromise proposals by Chile, with the backing of five other non-permanent states on the UN Security Council known as the "uncommitted six", with a one-month deadline for Saddam to comply, were abandoned.

It was on 13 March that Lord Goldsmith was summoned to meet Lord Falconer and Baroness Morgan. Exactly what was said then is not known but the Attorney General left with the view that war would be lawful under resolution 1441 without any further Security Council authority.

But an important clue as to what went on lies in the correspondence uncovered by the Butler inquiry. So sensitive was Lord Goldsmith to the events of these few days that he was reluctant to speak about it during his two closed appearances before the five-person team under the chairmanship of the former cabinet secretary, Lord Butler. The Attorney General even suggested that he could not show the committee the now controversial 7 March legal advice and gave in to their demand only after they told him they would abandon their inquiry and announce why they had done so.

On 14 March - the day the UK abandoned its attempt to secure a second UN resolution, citing the French veto threat - Lord Goldsmith's legal secretary wrote to Mr 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 paragraph 4 of resolution 1441". The question was significant. In the 7 March advice Lord Goldsmith had said it was essential that strong evidence existed that Iraq was still producing WMD. Now he was asking if that evidence existed.

The next day, 15 March, Mr Blair's private secretary replied: "It is indeed the Prime Minister's unequivocal view that Iraq is in further material breach of its obligations". The Butler Inquiry, on this point, reports: "We have been told that, in coming to this view ... the Prime Minister took account of both the overall intelligence picture and of information from a wide range of other sources."

But the voices of political disquiet were not stilled. That same day the Chancellor, Gordon Brown, told Mr Blair: "What people ask me is, why is there not just a little more delay." The Prime Minister was about to head to the Azores for a war summit with President Bush and the Spanish Prime Minister, Jose Maria Aznar. As if to assuage Mr Brown's concern, Mr Blair before he left put in a final call to the Chilean President, Ricardo Lagos. A deal was mooted, President Chirac would accept a 30-day deadline for Iraq, as long as the UN weapons inspectors approved.

But Washington rejected the offer. "We have had timelines, we have had deadlines, we have had benchmarks," said Colin Powell. "The problem is, Iraq is not complying."

At the Azores war summit on 16 March, the US, UK and Spain gave Saddam a 24-hour ultimatum to enforce their own demands for immediate Iraqi disarmament, or face war.

It was just 10 days since the Attorney General had issued his original 13-page advice, with all its reservations and lawyerly caveats. On 17 March Lord Goldsmith attended a meeting of the Cabinet. He sat in the chair previously occupied by Robin Cook, who had just resigned as Foreign Secretary over the rush to war. There the lawyer read out a brief statement, just 337 words long, saying that "authority to use force against Iraq exists from the combined effects of resolutions 678, 687 and 1441". There were no questions. Mr Blair swiftly moved the discussion on.

Later that same day, the Attorney General read out the same statement to Parliament and the US, the UK and Spain withdrew their proposal for a new Security Council resolution. They blamed France for the failure to havve reached a new international agreement.

On 18 March Tony Blair went to the House of Commons to set out the central justification for war to MPs. "The United Kingdom must uphold the authority of the United Nations as set out in resolution 1441 and many resolutions preceding it," he said, "and therefore should use all means necessary to ensure the disarmament of Iraq's weapons of mass destruction".

The same day Elizabeth Wilmshurst, the deputy legal adviser at the Foreign Office, resigned in protest over the legality of the war, saying it would be a "crime of aggression". (Her boss Michael Wood did not, and received a knighthood in the 2004 New Years Honours list). Two days later, the invasion of Iraq began.

Technically, the Attorney General did not change his advice, because he did not come to a firm conclusion on 7 March. But the gap between his judgements of 7 March and 17 March constitutes a political chasm.

From all of which, what are we to conclude? There can be little doubt that, had the Attorney General's full advice from 7 March been what he read out in Parliament, the outcome might have been very different. Wavering Labour MPs might well have voted the opposite way in the ensuing Commons vote.

As it was, the Prime Minister was able to say, and has reiterated ever since, that Lord Goldsmith's formal advice was "very clear" that the war was legal.

The Foreign Secretary, Jack Straw, has been able to maintain, with a straight face, that the official legal advice, as shown to the Cabinet on 17 March, was "unequivocal".

And Lord Goldsmith has felt able to stand before the House of Lords and insist that he was not "leaned on" to change his mind.

Whether anyone believes them is quite another matter.

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