Tuesday, January 26, 2010

Decisions, decisions

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FROM THE TCI WIRE:

Committee Member Usha Prashar: Can I just then confirm, what were your views of the legal position on the use of force against Iraq before the Security Council Resolution 1441?
Elizabeth Wilmshurst: They were the same as described by Sir Michael Wood this morning, that it would be necessary to have a resolution of the Security Council, if force against Iraq were to be lawful, that the other lawful reasons for the use of force were not present at that time.
Commitee Member Usha Prashar: But there was a consistent view of all the law officers with the FCO [British Foreign & Commonwealth Office]?
Elizabeth Wilmshurst: Of all of the legal advisers within the FCO, yes.
Committee Member: Was the Foreign Secretary [Jack Straw] aware of your advice?
The illegal war. In London today, the Iraq Inquiry heard there was no legal basis for the Iraq War. Today's witnesses were Michael Wood (Legal Adviser, Foreign and Commonwealth Office, 2001 - 2006), David Brummel (Legal Secretary to the Law Officers, 2001 -2004), Elizabeth Wilmshurts (Deputy Legal Adviser, Foreign and Commonwealth Office, 2001 - 2003) and Margaret Beckett (Secretary of State for Foreign and Commonwealth Affairs, May 2006 - June 2007) (link goes to transcript and video option). John Chilcot is the chair of the Inquiry and he noted this morning that the testimonies would focus on legal issue and, "It is important also to recall we shall be raising legal issues with Jack Straw when he appears again on 8 February and with Mr [Tony] Blair on Friday." The first witness was, Michael Wood who explained, "I was the chief legal adviser to the Foreign and Commonwealth Office from 1999, the end of 1999, until February 2006 when I retired. I was the head of a group of lawyers."
Usha Prashar: Sir Michael, thank you for your statement. What I want to cover is the legal position on the use of force before the Security Council 1441 and also what happened in terms of practical advice giving and the concerns you might have raised, but I think it would be very helpful if youc an just tell us whether you were ever asked to advise on the provisions of international law relevant specifically to regime change in Iraq, and who asked you, and when was this, and what advice did you give?
Michael Wood: It was such an obvious point that kept on coming up and we just stuck in the sentence: "Regime change is not a legal basis for the use of force." It wasn't really controversial, so -- I can't remember if and when I presonally put that sentence in, but it went constantly into documents and was not, as far as I can recall, challenged by anyone.
Usha Prashar: So you can't remember when you were specifically asked that question and by whom?
Michael Wood: I can't. I can remember when we were first -- at least, I think I can remember, having refreshed my memory with the papers -- when we first looked at the general question of the legal basis for the use of force prior to the adoption of 1441, if you would like me to set that out.
Committee member Usha Prashar: I would actually. That was my next point. I really wanted you to briefly give your view on the legal position of the use of force before.
Michael Wood: I think the legal position was pretty straightforward and pretty uncontroversial. The first possible basis would be self-defence, and it was clear to all the lawyers concerned that there was no -- a factual basis for self-defence was not present, unless circumstances changed, because there was not -- Iraq was not engaged in an armed attack, nor was there an imminent armed attack on us or its neighbours or anybody else. So self-defence was ruled out. The second possibility would have been the exceptional right to use force in the case of an overwhelming humanitarian catastrophe. This was the Kosovo argument, the argument we used in 1999, and also used for the No Fly Zones. Apart from the No Fly Zones, it was clear that there was no basis, using that rather controversial argument, for the use of force, in 2001/2002. So that left the third basis, possible basis, which was with authorisation by the Security Council. There, of course, we had a series of resolutions culminating in 1205 of 1998, which was seen as the basis for Operation Desert Fox in December 1998, and so there was a slight question whether that finding of a breach, a serious breach, was still -- still had some force. But I think all the lawyers who looked at it were pretty -- was very clearly of the view that it was not, and that if we sought to rely on that resolution of some years before, we wouldn't have had a leg to stand on. So the advice that was given was that there was no basis for the use of force in late 2001, when it first arose, I think, in 2002, without a further Security Council decision. There was one point that kept on coming up. Occassionally ministers, people, would say, "Well, Kosovo, we can do what we did in Kosovo. We didn't need a Security Council Resolution there". They remembered that we hadn't had a resolution, but, of course, Kosovo was very specific. It was based on the overwhelming humanitarian catastrophe, the hundreds of thousands of Kosovans being driven from their homes and their country.
Committee Member Usha Prashar: You made that very clear --
Michael Wood: We made it very clear throughout and I don't think it was very controversial. Occassionally, you would get ministers saying the wrong things, or the Prime Minister [Tony Blair] saying the wrong thing privately, and I would just jump in and remind people of this basic position, but the basic position was set out by one of my colleagues as early as November 2001, when I think President Bush made some kind of statement which made it look as though fource might be used. So we set out the position immediately. It was repeated in a document that was attached to repeated documents that went to that famous meeting on 23 July [Crawford, Texas meet up between Blair and Bush at Bush's ranch]. These, I think, are --
Committee Member Usha Prashar: What you are saying is that you and your colleagues were consistent in the advice you were giving prior to this period?
Michael Wood: We were, and I'm sure the Attorney was aware of what we were saying and agreed with it. It just wasn't really a controversial business at that stage.
Committee Member Usha Prashar: During this period, nobody challenged you, nobody disagreed with you.
Michael Wood: That's correct.
Committee Member Usha Prashar: This was the consistent view of you and your colleagues?
Michael Wood: Yes.
Committee Member Usha Prashar: I think this morning we have actually published notes that you sent to the Foreign Secretary on 26 Mrach, which is a -- records the Secretary of State's conversation with Colin Powell.
Michael Wood: Yes.
Committee Member Usha Prashar: I mean, were you concerned what he said, that he felt entirely comfortable making a case for military action to deal with Iraq's WMD? What were your concerns and why did he choose to write in this way?
Michael Wood: I was obviously quite concerned by what I saw him saying. I mean, often reports are not accurate. They are summaries, they are short. He may well not have said it in quite the form it came out in the telegram, but whenever I saw something like that, whether from the Foreign Secretary or from the Prime Minister or from officials, less often perhaps, I would do a note just to make sure they understood the legal position.
UN Security Council Resolution 1441 was passed by the Security Council on November 8, 2002. It did not declare war. It allowed for inspections. The inspection process was ended when Bush announced Saddam could leave or the invasion would start. There was not a resolution for the invasion. The committee has heard some witnesses admit they would have liked a second resolution, some state that it was not needed and a few delicately question the war itself without a second resolution. Today the committee heard that the Iraq War was illegal without a second resolution and that the cabinet -- including the Prime Minister Tony Blair -- knew of that before the start of the Iraq War.
Wood testifed about a January 24, 2003 letter (which the committee made public) to Jack Straw written as a result of a meeting Straw and Dick Cheney (the US' then president of vice) had in DC where Straw insisted a second UN resolution was only a preference and the war was still a go "if we tried and failed" to get a second resolution. Wood stated of his letter, "That was so completely wrong, from a legal point of view, that I felt it was important to draw that to his attention." Elizabeth Wilmshurst testified in the afternoon.
Chair John Chilcot: Did it make a difference that Jack Straw himself is a qualified lawyer?
Elizabeth Wilmshurst: He is not an international lawyer.
Emma Alberici (Australia's ABC News) notes of the above exchange, "Even Sir John Chilcot could not resist but laugh." Jeremy Greenstock had earlier testified and noted that he didn't believe the Iraq War was "legitimate" but he would not weigh in on the legality.
Committee Member Lawrence Freedman: You are saying that's actually part and parcel of the legal problem as well? That you don't necessarily see this distinction between legality and legitimacy?
Elizabeth Wilmshurst: In the case of Resolution 1441, he seemed to be saying that it was all right if we trod a very narrow line of textual interpretation, with which I didn't agree, of course, but he had a narrow textual argument, but which didn't have regard to what he said the majority of the Security Council believed. I was saying that, in this particular case, actually the whole question is: whose is the decision, the Security Council's or individual member states'? So that what in this case he was calling "legitimacy", I would call "legality". I would treat it as part of the legality argument. I do not know that I would make a wider proposition of it.
Committee Member Roderic Lyne used his questioning to, among other things, establish that the legal advice from the Foreign Office and the Attorney General's opinion was the same (illegal without a second resolution) and that it was the same "throughout 2002, before and after the adoption of Resolution 1441, and up until the point of the Attorney General's advice of 7 March 2003". That is when the divergence comes, days before the start of the Iraq War. It should also be noted that as last year drew to a close, Tony Blair told the BBC that even without WMD, the Iraq War was still justifiable on the grounds of regime change. That argument/defense was rejected by government attorneys as Blair damn well knew.
Will Stone (Morning Star) quotes Lindsey German, Stop The War, reacting to today's testimonies, "We all knew that the war was illegal but it's a disgrace that Mr Straw ignored legal advice. When you hear that legal advisers had doubts abou tthe war and were being ignored you realise that this is not just about Tony Blair but a whole host of people who all went along with it." Brian Haw tells Stone, "Nobody will accept responsbility for the war even though international law was thrown clean out the window. That's what they hung the Nazis in Nuremberg for." James Chapman (Daily Mail) emphasizes this from today's hearing, "Astonishingly, Downing Street asked lawyers to assess what the consequences would be if Britain toppled Saddam Hussein without legal authority. When they received the lawyers' memo, No.10 demanded: 'Why has this been put in writing?'"

Andrew Sparrow live blogged today's hearings for the Guardian. Channel 4 News' Iraq Inquiry Blogger live blogged at Twitter. Chris Ames fact checked at Iraq Inquiry Digest. At the Guardian, Chris Ames gives the backstory on the previous efforts to hide the legal advice and the disregarding of that advice:
Last year, the information tribunal ordered the government to release the minutes of the cabinet meetings of 13 and 17 March but Straw -- for the first time ever -- used the veto that he had himself put in the freedom of act to block publication. It had emerged during the tribunal hearing that there was considered to be insufficient discussion of the legal issues at the second meeting. It has since been admitted during the inquiry that all that happened at that meeting was that Goldsmith's very short legal advice was tabled and that a request by Clare Short for a discussion was rejected by the majority of the cabinet.
This lack of discussion is one of the key political and constitutional issues around the war. Should the cabinet have discussed the legality of a decision for which they were constitutionally collectively responsible?
Friday, one-time prime minister and forever poodle Tony Blair will appear before the Iraq Inquiry in London. A major protest is expected to take place outside as War Criminal Tony testifies. From Stop The War Coalition's "Protest on Tony Blair's Judgement Day: 29 January from 8am:"

Queen Elizabeth Conference Centre, Broad
Sanctuary, Westminster, London SW1P 3EE

On Friday 29 January, Tony Blair will try to explain to the Iraq Inquiry the lies he used to take Britain into an illegal war.

Writers, musicians, relatives of the dead, Iraqi refugees, poets, human rights lawyers, comedians, actors, MPs and ordinary citizens will join a day of protest outside the Inquiry to demand that this should be Tony Blair's judgement day.

There will be naming the dead ceremonies for the hundreds of thousands slaughtered in Blair's war. Military families who lost loved ones in Iraq will read the names of the 179 British soldiers killed.

Join us from 8.0am onwards.
Paul Lewis and Vikram Dodd (Guardian) report, "Anti-war campaigners planning to protest when Tony Blair appears before the Iraq inquiry on Friday said today they had been barred from going near the building where he is giving evidence. Up to 1,000 protesters are expected to rally outside the Queen Elizabeth II Centre, in Westminster."


RECOMMENDED: "Iraq snapshot"
"The war was illegal, Iraq Inquiry told"
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"Social Security and other issues"
"Truth telling"
"Brian Edwards-Tiekert debuts as co-host"
"Bernanke and American Dad (Wally)"
"Out-FM"
"E-mails"
"My best friend Kenneth Miller"
"Mixed bag"
"Connect the Lies with Lila Garrett"
"The joke that never ends"
"From his mouth"
"THIS JUST IN! HE THINKS HE'S GETTING A 2ND TERM?"

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