As soon as Lord Goldsmith’s preliminary advice on the legality of the Iraq war was leaked yesterday evening, I took a bet with myself that it would instantly be ruthlessly cherry-picked and spun by the anti-war brigade in the most tendentious and misleading way — as has every single development in the Iraq saga. So it proved within a very short time, as a procession of pundits streamed across our TV screens last night, most of them selectively wrenching the Attorney-General’s comments out of context to shore up their case that this March 7 document was wholly at variance with his March 17 answer to Parliament, which said unequivocally that the war was legal. Goldsmith thus stands accused of dissembling, and today’s papers are full of claims that the Prime Minister lied about the legality of the war. ‘The whole thing reeks’ said Professor Peter Hennessy.

But it is the reporting that reeks. For the fairest summary of Goldsmith’s position on March 7 and then March 17 is that on March 7 he sat on the fence, and on March 17 provided the argument in support of the case that the war was legal. Let us remind ourselves, therefore, of the persistent claim over the past two years: that Goldsmith originally told Tony Blair that the war would be illegal without a second UN resolution and then was pressured to change his mind. We now know from the leaked March 7 document that Goldsmith did not say the war would be illegal.

The whole of his document has now been published. But if you just read the few summary paragraphs here that were leaked this morning — which a number of papers signally failed to reproduce in their entirety for the public to make their own mind up — you can see that he says in those few paragraphs that there are arguments on both sides, and that for every statement which suggests the war might be deemed to be illegal he produces a counter- statement saying there is a case for saying it would be legal. Yet many of the news reports on the BBC and in the press omitted those counter-statements in much of their reporting.

Now that his full opinion has been published, which you can read here, we can see even more clearly than from this morning’s leaked paragraphs that far from Goldsmith having said initially that war would be illegal, he inclined on March 7 to the view that it would be legal — but that there were formidable difficulties both from key ambiguities in UN Security Council resolution wording, and from the hostility of much of world opinion to war in any circumstances.

Much of this document is taken up with an immensely detailed discussion of a key point in the legality argument — whether the Security Council needed to make a further decision on going to war, or whether it was merely necessary to have a discussion about Saddam’s further breaches of the UN resolutions. Thus he writes:

‘It is clear that the language of OP12 was a compromise by the US from their starting position that the Council should authorise in advance the use of all necessary means to enforce the cease-fire resolution in the event of continued violations by Iraq. It is equally clear, however, that the language does not expressly provide that a further Council decision is necessary to authorise the use of force.’

If the Security Council failed to decide on a course of action, he writes,

‘The more difficult scenario is if the views of Council members are divided and a further resolution is not adopted either because it fails to attract 9 votes or because it is vetoed.’

The ambiguous language in the Council’s resolutions, he says, mean that the French may not have realised that were voting to allow military action with discussion but no decision. And there was a contrary argument, which he puts, to support the contention that no military action was possible without such a further Council decision. And in any event:

‘A further difficulty is that, if the matter ever came before a court, it is very uncertain to what extent the court would accept evidence of the negotiating history to support a particular interpretation of the resolution, given that most of the negotiations were conducted in private and there are no agreed or official records’.

He then summarises the arguments (the paragraphs that were leaked this morning) and says they are balanced. In saying that ‘the safest legal course would be to secure the adoption of a further resolution’, he is not saying the war would be illegal without it. He is saying instead that, given the fact that there is significant opinion that it would be illegal, with all the ambiguities and opposition he has just elucidated, it would be prudent to obtain a second resolution — which was of course the government’s view and why it spent so much (fruitless) energy in trying to obtain it. There is all the difference in the world between saying a course of action is prudent — essentially a political judgment — and saying it determines whether something is legal or illegal.

He also says that war would be legal without a second resolution

‘if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider very carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity.’

Much is being made of statements made at that time by Hans Blix that Saddam was cooperating. But as Jack Straw has been saying, Blix also released a 174-page appendix which contained copious examples of Saddam’s non-co-operation, thus amply meeting Goldsmith’s point. In other words, his opinion changed because circumstances changed, but in a way he had previously allowed for. I recall that at the time, media reporting of that vast appendix was virtually non-existent. Thus history was falsified and continues to be so.

The reporting of Goldsmith’s leaked opinion is in keeping with most of the reporting of the Iraq crisis. Those who formed a passionate opposition to the war view any development in connection with it through the distorting prism of their prejudices. So great has been this big lie that even many people who originally supported the war have come to believe unshakeably that Blair lied, and are thus vulnerable to the misleading impression continuing to be given by the media.

An egregious example of this distorted-prism thinking is provided in the Guardian, where the ‘human rights’ lawyer Lord Lester provides a point-by-point deconstruction of this morning’s leaked paragraphs. But if Lester’s analysis itself is deconstructed, it betrays an astonishingly selective approach. You can read Lester’s analysis here. What follows are a few examples of the bias in his analysis that struck me (I show his annotations to the Goldsmith document in italics):

1)

‘A key question is whether there is in truth a need for an assessment of whether Iraq’s conduct constitutes a failure to take the final opportunity or has constituted a failure fully to cooperate within the meaning of OP4 such that the basis of the ceasefire is destroyed. If an assessment is needed of that situation, it would be for the Council to make it.’

Lester comments:

‘That’s very important because that shows that it’s not for President Bush or Blair to make the assessment.’

But he ignores Goldsmith’s caveat that immediately follows:

‘A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has predetermined the issue. Public statements, on the other hand, say otherwise.’

2)

‘However, the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity.’

Lester comments: ‘

Very strong words

’. But he fails to highlight this from Goldsmith which immediately precedes them:

‘Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.’

3)

‘In reaching my conclusion, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable’

.

Lester comments:

‘He’s covering his back’

. This uncharitable interpretation is hard to sustain when in the very next sentence, Goldsmith says this argument is not enough:

‘But a “reasonable case” does not mean that if the matter ever came before a court I would be confident that the court would agree with the view. I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do require a further Council decision in order to revive the authorisation in resolution 678.’

4)

‘However, it must be recognised that on previous occasions when military action was taken on the basis of a reasonably arguable case, the degree of public and Parliamentary scrutiny of the legal issue was nothing as great as it is today.’

Lester comments:

‘He is saying you can’t get away with it these days because parliament and the press will be a more effective watchdog.’

True in itself; but he has again omitted the crucial caveat that preceded this:

‘But equally I consider that the counter view can be reasonably maintained’

by which Goldsmith meant the argument that the war would be legal.

The anti-war lobby claims that the government misled the country by failing to record the ‘caveats’ in either the intelligence assessments or Goldsmith’s advice. But removing the caveats is precisely what this faction has now done to Goldsmith himself in spades.

There is a further point which appears to have been missed altogether. Much is being made of the fact that, while Goldsmith's March 7 opinion was full of finely balanced argument, his March 17 reply to Parliament was an unequivocal endorsement of the legality of the war. Actually, it wasn't. The two documents were in response to very different requests. The March 7 opinion was in response to Tony Blair's request for '

advice on the legality of military action against Iraq'.

The March 17 answer was in response to this question from Baroness Ramsay of Cartvale:

'What is the Attorney-General's view of the legal basis for the use of force against Iraq'.

In other words, he was being invited to provide merely his view of the argument that the war was legal. Which is precisely what he did. His view of whether or not it was legal was in the March 7 document -- which was a lawyerly presentation of the legal arguments on both sides and an evaluation of the politico-legal context, and which said, in effect, that the war was probably legal but was fraught with peril in the absence of a second resolution.

There are many reasons why I passionately oppose Tony Blair, who I believe has done enormous damage to Britain’s core institutions and values and if elected for a third time would do yet more. The deeper problem in our society, however, is the systematic corruption of truth, in which his administration has in many instances been complicit. But on this issue he is, in my view, the victim of this culture of lies. Michael Howard’s attack on him for lying over Iraq, using the Goldsmith opinion as ammunition (while conceding that the war was ‘probably legal’ anyway) is cynical, opportunistic and quite disgusting because it itself is based on something that has no basis in fact -- that Blair took the country to war on a lie.

The evidence simply does not support this. Despite the volcanic lava of claims to the contrary that has flowed through our national debate these past two years, there has never been a shred of evidence that has stood up to scrutiny that Blair lied over Iraq. Not one. Behaved unwisely, opportunistically, misinformedly – for all of these there is evidence. But not for lying. The ‘evidence’ to support that has all derived from systematic misinformation, selectivity, distortion and omission – all flowing from the cancer at the heart of all this, the visceral hatred of George W Bush and the opposition to the war in Iraq, the expression of prejudice and the desire for appeasement to which all subsequent developments have been wrenched to fit.

Posted by melanie at April 28, 2005