Here's How The UK's Then Attorney General Declared Invading Iraq Was Legal
The Chilcot report said the way the legal justification for the war was formed was "far from satisfactory" and based on Tony Blair's own assessment of Iraq's behaviour.
The circumstances in which Britain's then attorney general advised that it would be lawful for the UK to invade Iraq were "far from satisfactory", the official UK inquiry into the Iraq war has concluded.
The report, led by Sir John Chilcot, found that Lord Goldsmith relied on a one-paragraph memo from Tony Blair himself when he issued his controversial legal advice that a second UN Security Council resolution authorising use of force was not required.
The inquiry did not make a ruling on whether or not the war was legal – saying it was a decision for courts – but was damning on the process that led to the attorney general advising that the war was legal just days before the conflict began.
The inquiry also sharply criticised the government for failing to share with key cabinet ministers the "conflicting arguments" and uncertainties around the legal advice provided to Tony Blair by Goldsmith.
The detailed timeline set out by the report reveals that Goldsmith's view hinged on a determination by Blair himself that Iraq was in "material breach" of a UN Security Council resolution on weapons of mass destruction (WMD). Blair provided that assurance in a one-paragraph memo from his office – but the "precise basis on which Mr Blair made that decision is not clear”, Chilcot said.
This is how, over the course of four months, the attorney general went from saying he was "not optimistic" that the UN Security Council resolution authorised war to giving Blair a memo doing just that.
October 2002: "The current draft would not be sufficient to authorize the use of force without a second resolution."
In October 2002, the US and UK were persuading the UN Security Council to pass what eventually became Resolution 1441 – which required Iraq to, among other things, decommission any WMD and allow independent inspectors into the country.
This later became the legal basis for the UK's intervention into Iraq but was hugely controversial as it did not explicitly sanction unilateral military action without approval from the Security Council.
A note published alongside the Chilcot report shows that Goldsmith told then foreign secretary Jack Straw in a phone call that he was concerned over reports that Blair had told Bush the draft resolution would allow the UK to join the US in military action.
Goldsmith said he disagreed: "In the Attorney's view ... the current draft would not be sufficient to authorize the use of force".
November 2002: Goldsmith "not at all optimistic" the final UN resolution would be grounds for war.
On 11 November, Goldsmith had a phone call with Jonathan Powell, Tony Blair's chief of staff. The attorney general said he had heard through "Chinese whispers" that he (Goldsmith) took "an optimistic view" that the UN resolution would authorise UK military action if Iraq breached its requirements – without any need for a second resolution.
"The true position," the note of the conversation states, "was that he was not at all optimistic about this."
December 2002: Goldsmith is formally asked to provide advice on the legality of war with Iraq – but not yet.
The Chilcot report states that Goldsmith was formally asked by the Foreign Office on 9 December to form a legal opinion on whether Resolution 1441 could form the basis for legal action, but the letter clearly stated "No advice is required now".
In a meeting 10 days later, Goldsmith and Powell discussed the resolution, while Goldsmith acknowledged he was "considering" two alternative legal views on whether a second resolution would be necessary to authorise military action. Powell repeated that Goldsmith was still not being asked to provide formal legal advice "at this stage".
However, the two men agreed it "might be helpful" if when Goldsmith was forming his opinion on the legality of war, he discussed it first in draft form with the prime minister – giving him opportunity to revise it before presenting it to the cabinet.
24 January 2003: The Foreign Office's legal adviser states: "The United Kingdom cannot lawfully use force against Iraq."
Although the attorney general was yet to rule, memos published alongside the Chilcot report show the Foreign Office's legal opinion was unequivocal: War in Iraq would not be legal without a fresh UN Security Council resolution.
Michael Wood, then the legal adviser to the department, wrote to Jack Straw after seeing Straw had told US vice president Dick Cheney that "We would be OK if we tried and failed" to get a second resolution before conflict.
"I hope there is no doubt in anyone's mind that without a further decision of the Council ... the United Kingdom cannot lawfully use force against Iraq," Wood wrote. "To use force without Security Council authority would amount to the crime of aggression."
The foreign secretary wrote back five days later: "I note your advice, but I do not accept it."
30 January 2003: Goldsmith writes to Blair saying Resolution 1441 "does not authorise the use of force" without a further decision.
The attorney general sent a note to the prime minister – with the assurance "I have not copied this minute further" – saying he was still not of the view the UK could go to war based on Resolution 1441.
"I remain of the view that the correct legal interpretation of resolution 1441 is that it does not authorise the use of military force without a further determination by the Security Council," he writes.
He acknowledges there are "arguments that can be made to support the view" that only a discussion among the council is necessary, but that he does not share that view.
A note in the margin of the memo says: "I just don't understand this."
February 2003: Goldsmith says "a reasonable case" can be made for war without a second resolution.
A draft memo prepared on 12 February details Goldsmith's changing view on whether Resolution 1441 could be used as authorisation for war following meetings with US and UK diplomatic staff involved in its drafting.
Early in the note, Goldsmith stated that "it is clear that resolution 1441 (2002) does not expressly authorise the use of force", but later says "a reasonable case can be made" that in combination with earlier resolutions, 1441 could be used as a legal basis.
"In taking this position, I have taken account of the fact that on a number of previous occasions ... UK forces have participated in military action on the basis of advice from previous law officers that the legality of the action under international law was no more than reasonably arguable."
Goldsmith said that if the UK went to war without a second resolution, though, "I would expect the Government to be accused of acting unlawfully."
"Therefore," he wrote, "it will be important to ensure that the Government is in a strong position to put up a robust defence. This means that there must be very strong factual grounds for concluding that Iraq has failed to take the final opportunity granted by the Council."
The Chilcot report notes that "until 27 February, No 10 [Downing Street] could not have been sure that Lord Goldsmith would advise that there was a basis on which military action against Iraq could be taken in the absence of a further decision from the Security Council".
March 2003: Final advice on the legality of the war is issued.
The Chilcot report states that Goldsmith's formal legal opinion drafted on 7 March followed much of the same shape as his earlier draft. Goldsmith remained of the opinion "the safest legal course would be to secure a second resolution", but reiterated that "a reasonable case" for war could be made.
The opinion did stress that this did not necessarily mean a court would agree with this view.
The report noted that following a meeting on 11 March, the chief of defence staff and head of civil service both asked for for "a clear-cut answer on whether military action would be lawful rather than unlawful". A note on the minutes of the meeting stated: "This letter is extremely sensitive. It must not be copied further."
On 13 March Goldsmith confirmed the "better view" was that there was a legal basis for war without a second resolution.
However, as Goldsmith had said in previous drafts, he considered the factual basis for war a crucial part of the government's legal argument – that the prime minister thought that Iraq had breached its agreements on WMD and inspections.
The law offices wrote to Number 10 seeking confirmation of this basis on 14 March.
They received a one-paragraph reply one day later, from the private secretary of Number 10:
The letter offered no explanation or evidence as to how the prime minister had reached this view.
This is the exchange that drew particular criticism from the Chilcot inquiry panel, with Chilcot himself noting: “The precise basis on which Mr Blair made that decision [that Iraq was in breach] is not clear.”
The full report expand this view. "Senior ministers should have considered the question posed in Mr Brummel's letter," it said, "on the basis of formal advice. Such a Committee should then have reported its conclusions to Cabinet before its members were asked to endorse the Government's policy."
The report also criticises Number 10's decision to provide the cabinet with only a summary of Goldsmith's argument for legal action in a short written answer.
"That document represented a statement of the Government's legal position," the report states. "It did not explain the legal basis of the conclusion that Iraq had failed to take 'the final opportunity' to comply with its disarmament obligations offered by resolution 1441."
The report also noted that the cabinet was not presented with Goldsmith's memo setting out the "conflicting arguments" on the legal effect, but just his eventual conclusion.
"That advice should have been provided to ministers and senior officials," it said.
"Given the gravity of this decision," the report concludes, "Cabinet should have been made aware of the legal uncertainties."
In a statement after the publication of the report, Lord Goldsmith said it was his "honestly held, professional opinion" that Resolution 1441 authorised the UK to go to war: "I believed then – and I still believe – that military action was lawful."