Downing Street II

HOW TO RENDER LEGAL AN ILLEGAL, UNPROVOKED ATTACK ON IRAQ

Downing Street II by Ray McGovern June 13, 2005

Ray McGovern is a co-founder of the Truth Telling Coalition and of Veteran Intelligence Professionals for Sanity. He had a 27-year career as a CIA analyst, and now works for Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC.

Yesterday, London's Sunday Times published the text of another SECRET UK EYES ONLY briefing document prepared for senior British officials. This one was dated July 21, 2002, two days before British intelligence chief Richard Dearlove gave Prime Minister Tony Blair and his top national security advisers a briefing based on discussions with American counterparts in Washington.

The minutes recording the discussion at the July 23, 2002, meeting, published by the Rupert Murdoch's Sunday Times on May 1, 2005, included Dearlove's matter-of-fact report that President George W. Bush had decided to bring about "regime change" in Iraq by military action; that the attack would be "justified by the conjunction of terrorism and WMD" (weapons of mass destruction); and that "the intelligence and facts were being fixed around the policy."

Creating Conditions

At that meeting, Foreign Secretary Jack Straw noted that the evidence regarding "weapons of mass destruction" was "thin." And British Attorney General Peter Goldsmith pointed out that "the desire for regime change was not a legal base for military action." But Blair gave them the back of his hand, ordering them to "work on the assumption that the U.K. would take part in any military action."

It is a safe bet that the British seemed a bunch of nervous Nellies in the eyes of the hard-nosed "neoconservatives" running our policy toward Iraq. The briefing paper of July 21 shows senior British officials preoccupied with the question of how to fix it so the war would be legal. The paper makes it clear that U.S. military plans assumed, "as a minimum, the use of British bases on the islands of Cyprus and Diego Garcia." Even this minimum gave rise to serious legal questions. Pervading the briefing paper is the British leaders' need to square a circle: how to render legal an illegal, unprovoked attack on Iraq—or in the words of the briefing paper, how to go about "creating the conditions...in which we could legally support military action."

The briefing paper of July 21, 2002, offers this clear picture of what the British see as the U.S. goal. "U.S. military planning unambiguously takes as its objective the removal of Saddam Hussein's regime, followed by elimination of Iraqi WMD." But, alas, with the evidence of WMD "thin," and an invasion to bring about "regime change" illegal, the British found themselves between Iraq and a hard place—Washington. The document reeks not only of obsequiousness toward the United States, but also wonderment at Washington's policies—particularly with respect to international law.

U.S. views of international law vary from that of the U.K. and the international community. Regime change per se is not a proper basis for military action under international law...Legal bases for an invasion of Iraq are in principle conceivable...but would be difficult to establish because of, for example, the tests of immediacy and proportionality.

In lay terms, that must mean that, absent any immediate threat, those who chose to invade and occupy Iraq anyway would flunk the "test of proportionality." Grasping at straws, the document raises the possibility of demanding Iraqi acceptance of an unacceptably intrusive U.N. inspection regime:

It is just possible that an ultimatum could be cast in terms which Saddam would reject (because he is unwilling to accept unfettered access)....However, failing that (or an Iraqi attack) we would be most unlikely to achieve a legal base for military action by January 2003.

The British, you see, knew that the summer months in Iraq are uncomfortably hot. Thus, January was the time they thought an invasion would have to begin, or the attack would have to be put off until autumn. As for a possible attack by Iraq, British government documents released to Parliament show that American and British aircraft dropped no bombs on Iraq in March 2002, 10 tons of bombs in July, and 54.6 tons in September. Nevertheless, this failed to provoke Saddam Hussein into the kind of reaction that could be used as an ostensible casus belli. And intrusive inspections? Iraq wound up tolerating the strictest inspection regime in modern history. And when U.N. inspectors found Al Samoud missiles with a range greater than that permitted, Saddam allowed them to be destroyed.

One can visualize the British lawyers wringing their hands: Foiled again.

Breaking The Laws Of War

While the White House may have deemed British government lawyers lily-livered or perhaps "quaint," they were under a good deal of pressure from the British military establishment, which wields more influence in the British government than its domesticated Pentagon counterparts do in Washington. To his credit, British Admiral Michael Boyce, chief of the defense staff, demanded a straightforward, written opinion from the attorney general that attacking Iraq would be lawful, before Boyce would put his troops at risk of subsequent prosecution as war criminals.

This put the bite on Attorney General Goldsmith who had long shared the doubts of the legal establishment about the legality of starting a war without unequivocal endorsement by the United Nations. After much equivocation, Goldsmith bowed to Blair and was asked to appear before the cabinet on March 17, 2003, two days before the war began. Goldsmith read a brief statement saying he now thought attacking Iraq was lawful, and Blair quickly moved the discussion on. Questions were not permitted. The British attorney general reportedly confided to lawyer friends during February and early March 2003 that he found himself in an "impossible" position, and wondered aloud if he should stay in the job.

Admiral Boyce, upset that he was never shown Goldsmith's more equivocal advice to Blair prior to March 17, has now said that if British troops are brought to trial by the International Criminal Court (ICC), British ministers should be "brought into the frame as well." The London Observer asked Boyce if Blair and Goldsmith should be included. "Too bloody right," was his answer.

American forces, of course, do not have to worry about the ICC, since the Bush administration "unsigned" the signature that President Bill Clinton had affixed to the treaty in December 2000. Nor have U.S. government officials shown themselves to be sticklers about international law. In November 2003, Richard Perle, then a key leader of the Defense Policy Board and a principal intellectual author of the invasion of Iraq, left international lawyers astonished when he told a London audience, "I think in this case international law stood in the way of doing the right thing."

The Evidence Strengthens

When asked about the July 23, 2002, minutes at their press conference last week in Washington, President Bush and Prime Minister Blair did a good job of obfuscating—enough to mislead our corporate press into the all-too-familiar he-said, she-said reporting. What went unnoticed was the fact that in the process, the two leaders unintentionally acknowledged the authenticity of the minutes, which read like a meeting of Mafioso. They may think no one will read the actual minutes. In that, they are dead wrong. And these new British revelations have already strengthened the case against the Bush administration.

The first paragraph of the Downing Street minutes of July 23, 2002, warns that they "should be shown only to those with a genuine need to know its contents." In a democracy, we the people have a genuine need to know the background of decisions on war and peace—so the source(s) who leaked the minutes and other documents were performing a duty that can be seen as truly patriotic. And patriotic leaks can be done without revealing information that truly needs to be protected.

On behalf of the Truth Telling Coalition, let me invite any patriotic truth tellers out of the woodwork, so that truly courageous leaders like Rep. John Conyers, D-Mich., will not have to depend solely on patriots in Britain (and Rupert Murdoch!). Conyers has a tip line on his website, and our coalition appeal includes a number of pointers about patriotic leaking, and what kinds of support are available.

LIBERTY CANNOT BE PRESERVED WITHOUT GENERAL KNOWLEDGE AMONG PEOPLE.
- JOHN ADAMS, AUGUST 1765.

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