Britain's attorney general, Lord Goldsmith, warned less than two weeks before the invasion of Iraq that military action could be ruled illegal. The government was so concerned that it might be prosecuted, it set up a team of lawyers to prepare for legal action in an international court. And a parliamentary answer issued days before the war in the name of Lord Goldsmith -- but presented by ministers as his official opinion before the crucial Commons vote -- was drawn up in Downing Street, not in the attorney general's chambers.
The full picture of how the government manipulated the legal justification for war, and of the political pressure placed on its most senior law officer, is revealed in the Guardian Wednesday. It appears that Lord Goldsmith never wrote an unequivocal formal legal opinion that the invasion was lawful, as demanded by Lord Boyce, chief of defense staff at the time.
The Guardian can also disclose that in her letter of resignation in protest against the war, Elizabeth Wilmshurst, deputy legal advisor at the Foreign Office, described the planned invasion of Iraq as a "crime of aggression." She said she could not agree to military action in circumstances she described as "so detrimental to the international order and the rule of law."
Her uncompromising comments, and disclosures about Lord Goldsmith's relations with ministers in the run-up to war, appear in a book by Philippe Sands, a Q.C. in Cherie Booth's Matrix chambers and professor of international law at University College London. Exclusive extracts of his book "Lawless World" are published in Wednesday's Guardian.
Lord Goldsmith warned Tony Blair in a document on March 7, 2003, that the use of force against Iraq could be illegal. It would be safer to have a second U.N. resolution explicitly sanctioning military action. "So concerned was the government about the possibility of such a case that it took steps to put together a legal team to prepare for possible international litigation," writes Sands.
The government has refused to publish the March 7 document. It was circulated to only a very few senior ministers. All Lord Goldsmith gave the Cabinet was a later oral presentation of a parliamentary answer issued under his name on March 17. This appears contrary to the official ministerial code, which states that the complete text of opinions by the government's law officers should be seen by the full Cabinet.
On March 13, 2003, Lord Goldsmith told Lord Falconer, then a Home Office minister, and Baroness Morgan, Blair's director of political and government relations, that he believed an invasion would, after all, be legal without a new U.N. Security Council resolution, according to Sands.
On March 17, in response to a question from Baroness Ramsay, a Labor peer, Lord Goldsmith stated that it was "plain" Iraq continued to be in material breach of U.N. Resolution 1441. "Plain to whom?" asks Sands. It is clear, he says, that Lord Goldsmith's answer was "neither a summary nor a précis of any of the earlier advices which the attorney general had provided."
He adds: "The March 17 statement does not seem to have been accompanied by a formal and complete legal opinion or advice in the usual sense, whether written by the attorney general, or independently by a barrister retained by him."
Separately, the Guardian has learned that Lord Goldsmith told the inquiry into the use of intelligence in the run-up to war that his meeting with Lord Falconer and Baroness Morgan was an informal one. He did not know whether it was officially recorded.
Lord Goldsmith also made clear he did not draw up the March 17 written parliamentary answer. They "set out my view," he told the Butler inquiry, referring to Lord Falconer and Baroness Morgan. Yet the following day, March 18, that answer was described in the Commons order paper as the attorney general's "opinion." During the debate, influential Labor backbenchers and the Conservative front bench said it was an important factor behind their decision to vote for war.
Robin Cook, the former foreign secretary and leader of the Commons, Tuesday described the Guardian's disclosure as alarming. "It dramatically reveals the extent to which the legal opinion on the war was the product of a political process," he said. The case for seeing the attorney general's original advice was now overwhelming, Cook added. "What was served up to Parliament as the view of the attorney general turned out to be the view of two of the closest aides of the prime minister," he said.
Sir Menzies Campbell, the Liberal Democrat foreign affairs spokesman, said the government's position had been seriously undermined. "The substance of the attorney general's advice, and the process by which it was partially published, simply do not stand up to scrutiny," he said. Sir Menzies added: "The issue is all the more serious, since the government motion passed by the House of Commons on March 18, 2003, endorsing military action against Iraq, was expressly based on that advice." He continued: "The public interest, which the government claims justifies nonpublication of the whole of the advice, can only be served now by the fullest disclosure."
Lord Goldsmith twice changed his view in the weeks up to the invasion. He wrote to Blair on March 14, 2003, saying it was "essential" that "strong evidence" existed that Iraq was still producing weapons of mass destruction. The next day, the prime minister replied, saying: "This is to confirm it is indeed the prime minister's unequivocal view that Iraq is in further material breach of its obligations."
The same day, Lord Boyce got the unequivocal advice he says he was after in a two-line note from the attorney general's office. The extent of concern among military chiefs is reflected by Gen. Sir Mike Jackson, head of the army, quoted by Peter Hennessy, professor of contemporary history at Queen Mary College, London. "I spent a good deal of time recently in the Balkans making sure [Slobodan] Milosevic was put behind bars," said Sir Mike. "I have no intention of ending up in the next cell to him in the Hague."
Sands records that Lord Goldsmith visited Washington in February 2003, when he met John Bellinger, legal advisor to the White House National Security Council. An official later told Sands: "We had trouble with your attorney; we got him there eventually."
A spokeswoman for Lord Goldsmith said Tuesday: "The attorney has said on many occasions he is not going to discuss process issues." The March 17 parliamentary answer was the "attorney's own answer," she said, adding that he would not discuss the processes of how the document was drawn up.
The Department for Constitutional Affairs said it could not say if Lord Falconer had a role in drawing up the answer.