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A legal war?

By Gary Gibbon

Updated on 27 April 2005

Revealed: A summary of the secret legal advice on Iraq. The warnings Blair refused to publish.

A legal war?

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Channel 4 News obtained a copy of the summary of the confidential legal advice written by the Attorney General Lord Goldsmith and sent to the Prime Minister on March 7th, two weeks before the war with Iraq.

It's a document that goes to the heart of Labour's second term, and to the Prime Minister's leadership of the country and his Government through a time of war. And it's a document the Government has point blank refused to publish. Neither was it shown to Mr Blair's own Cabinet.

Channel 4 News can reveal what the Attorney General wrote in the summary of his legal advice given to the Prime Minister on March the seventh 2003 - two weeks before the start of the war against Iraq.

It shows that - at that stage - the Attorney General was equivocal about the legal justification for war, and listed many caveats and warnings about the risk of illegality. Ten days later, however, none of those caveats appeared in the much briefer legal case which he presented to Parliament, only days before the war began.

In the document we reveal, the Attorney General emphasises the critical need for a second UN resolution and casts doubt on reviving the 12 year old resolution that he and Tony Blair ultimately relied on to authorise the hostilities.

A transcript of Gary Gibbon's report follows now:

The Attorney General's legal advice on the legality of war on Iraq can be seen here. This is the document the government didn't want you to see. At times they've even tried to deny its existence. It was deemed so sensitive the Prime Minister wouldn't even let his Cabinet see it.

It warns of legal challenges, legal doubts, the critical need for a second UN resolution and it bears little or no relation to the published view of the Attorney General shown to the Cabinet and to Parliament, the published legal opinion on which the country was taken to war.

"Lord Goldsmith's reputation is now certain to be that of the most pliable Attorney General in recent British political history." - Professor Peter Hennessay, Queen Mary College, University of London

Lord Goldsmith had told Parliament his published legal advice given on the eve of war "consistent with his detailed legal advice" given in private - experts disagreed.

"Just think if the House of Commons when it voted to give cover to give Mr Blair to go to war, had seen this bit of paper, and had been privy to what did or did not happen in the cabinet room that morning. The revolt against the government would have been far greater, they might not even have got away with it." - Professor Peter Hennessay, Queen Mary College, University of London

We now know, for the first time, that on March 7th - the very day Britain and the US formally tabled a second resolution at the United nations - less than two weeks before war began - the Attorney General wrote to the Prime Minster

"I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force." "...a court might well conclude that OP's (Operative Paragraphs) 4 and 12 do require a further Council decision..." - Lord Goldsmith

The Attorney General goes on to say it was possible to argue the opposite case - but lawyers we consulted say Lord Goldsmith's the secret legal opinion suggests that the attorney general thought going to war without a second resolution was a huge risk

"Reading between the lines it appears to be the view of the author of this document that if the case were to get to a court, presumably also an international court, it's more likely than not that the arguments put forward by the British government to justify the use of force against Iraq would not succeed." - Philippe Sands, QC - Author, 'Lawless World'

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We now know for the first time - that in his secret legal opinion, Lord Goldsmith emphasised the need for hard evidence of Iraqi breaches before the government could summon up old UN resolutions justifying war.

Lord Goldsmith's legal opinion says:

"... the argument that resolution 1441 alone has revived the authorisation ... will only be sustainable 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."

We now know that Lord Goldsmith - in his secret legal opinion - emphasised the importance of Hans Blix's UN inspectors & the IAEA nuclear inspectors at work in Iraq. Their opinion he wrote would be decisive in judging whether war is legal

"... 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." - Lord Goldsmith

But on the very day same day Lord Goldsmith was writing that - Hans Blix at the United Nations was reporting that cooperation with the Iraqis was improving & weapons were being destroyed.

"We are not watching the breaking of toothpicks. Lethal weapons are being destroyed" - Hans Blix, Former Head, UN Weapons Inspectors March 7, 2003

So having talked about the need for "strong factual grounds" that Iraq was in breach of resolutions, having said the government needed to "demonstrate hard and compelling evidence" that Iraq was in breach - how come only 10 days later in his published legal opinion did the Attorney General come to right that it is plain Iraq is not complying and is in breach?

The main suppliers of information were Hans Blix, who didn't agree, and British Intelligence. Lord Butler's inquiry made clear that they weren't reassessing intelligence on Iraq.

"Robin Butler followed the intelligence flow to the Attorney General's office very, very carefully in his report. And he showed that there was no new intelligence that justified the switch between the 7th of March and the 17th of March. The whole thing reeks, there is only one word for it - it reeks." Professor Peter Hennessay, Queen Mary College, University of London

The key figure in all this is Sir Michael Boyce - head of the armed forces in 2003. He took one look at the secret legal opinion we have now seen and said it wasn't good enough - he would not commit troops to battle on that basis. With thousands of troops deployed already, the clock ticking to invasion day, a desperate search began for something better.

In the days after the secret legal opinion was written there was much traffic between the Attorney General's office and no. 10. Various meetings, some including the Prime Minister, others - bizarrely - including his political aide Sally Morgan and his old friend - then a Home Office Minster Lord Falconer. The Attorney General insists they didn't help him "draft" the final short legal go-ahead.

But someone somewhere dreamt up the solution used, they would ignore Hans Blix's findings on the ground. The Attorney General would simply write to the Prime Minister and ask him if there had been further material breaches of UN resolutions by Iraq.

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5 days before the war started, The Prime Minister wrote back confirming that was his unequivocal view and the Attorney general promptly published his new, public, very different view of the legality of war.

"The leap between the two documents is so very great, that it seems unfortunately to support the views of those, who say, that some other political factors may have been involved. Now I'm not wanting to say that at this point, it may be that there is more information that we don't have. But the difference between the document of the 7th and the document of the 17th is so very stark that it's bound to support that type of interpretation." - Philippe Sands QC, Author- "Lawless World"

After Jacque Chirac's 'non' to a 2nd resolution, the government claimed that France's unreasonable veto at the UN justified war. We now know that the attorney general in his secret legal opinion warned them not to do anything of the sort.

"... there are no grounds for arguing that an "unreasonable veto" would entitle us to proceed on the basis of a presumed Security Council authorisation." - Lord Goldsmith

The government's always insisted that the only document that matters is the attorney general's published final view - some think history will judge it differently. "Even if the Prime Minister wins handsomely on polling day, this will stain him and his premiership just as long as people remember it. Just as Sir Anthony Eaton's name is forever associated with the Suez Crisis" - Professor Peter Hennessay, Queen Mary College, University of London

The real interest in the attorney general's secret legal opinion has always been the extent to which it suggests that - as with intelligence on Iraq, the government's public words did not match their private findings. Now everyone can form their own opinion.

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