Chilcot and the ‘smoking gun’


by Conor Foley    
7:02 pm - November 29th 2009

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Although Oliver Kamm and Scott Ritter could not be further apart on their views about the invasion of Iraq, both use the phrase ‘smoking gun’ in their relation to the Chilcot Inquiry whose existence or non-existence they believe must be the test by which its results will be judged. Kamm makes the case against having an inquiry at all while Ritter warns that unless the UN weapons inspectors are called to give evidence it will end in another whitewash.

Kamm, quoting John Rentoul, says that opponents of the war have become convinced that ‘there is a big secret that is being concealed from us, a smoking gun that “explains it all”. This is a symptom of the anti-war psychology, which so strongly disagrees with the decision made by Tony Blair, the Cabinet and the House of Commons that it seeks constantly for a hidden reason for it.’

Ritter, by contrast, says: ‘As of December 1998, both the US and Britain knew there was no “smoking gun” in Iraq that could prove that Saddam’s government was retaining or reconstituting a WMD capability. Nothing transpired between that time and when the decision was made in 2002 to invade Iraq that fundamentally altered that basic picture.’

Like most people I have got absolutely no knowledge about the inner discussions that led Britain to participate in the invasion – nor the intelligence information on which it was based. Since several of my friends and colleagues were killed in Iraq I am interested in finding out what actually did happen. I probably would have been in the UN building in Baghdad when it was bombed in 2003 if I had not gone to Afghanistan so I feel quite strongly about this subject.

But I am not really looking for a ‘smoking gun’ in either of the senses that Kamm and Ritter use the phrase. It seems to me perfectly plausible that the British government did genuinely believe that Iraq still had WMDs prior to the invasion and that the aggressive spinning of their fairly patchy evidence was standard political practice. I am also prepared to believe that Blair was sincere when he stressed the appalling human rights record of Saddam Hussein and that many people who supported the invasion did so on that basis.

Evidence may emerge at the Inquiry which shows that I am being too charitable, but this was not part of the central case for why I opposed the invasion. I simply felt that it would do more harm than good to the Iraqi people and be more of a spur than a setback to international jihadi terrorism. That was also the view of the majority of world public opinion and of a majority on the UN Security Council – a view which was borne out by subsequent events. Where we were wrong was only in under-estimating what a disaster the invasion would be and how many people would die as a result.

There are a whole set of issues which I think the Inquiry could usefully address, but these are basically operational and so I am not expecting it to shed any dramatic new light on them. Everyone accepts that there were failures of intelligence; the planning of the post-invasion occupation was woeful; there were numerous credible allegations of torture and brutality by the occupying forces; and British troops seems to have sometimes not been supplied with the right kit and equipment. I have worked in enough conflict zones to know that there are always fuck-ups over these things. In fact it was mainly my previous experiences in Kosovo that had turned me sceptical about such foreign adventures.

Invading another country is a very serious step to take and so the burden of justification – for example to stop an ongoing genocide or mass killing – is necessarily a high one.

There is, however, one issue which I think the Inquiry must address head-on. Even if you accept all of the UK government’s case for the invasion, the fact that it was not authorized by the UN Security Council clearly means that it was unlawful according to the overwhelming balance of informed legal opinion.

Iraq was not ‘plainly’ in violation of previous UNSC resolutions (the findings of the weapons inspectors were extremely inconclusive), it was not a threat to world peace or its immediate neighbours and there was not an ongoing humanitarian crises at the time. That is an exhaustive list of the legal criteria under which an invasion might have been justified and Iraq in 2003 did not fit any of them.

Yet, on 17 March 2003 the British Attorney General stated that the invasion would be perfectly lawful. Anyone who knows anything about international law knows that this was massively misleading – and we also now know that he had previously issued a private memo on 7 March where he gave a quite different legal opinion. The publication of the Attorney General’s second opinion was crucial in heading off the threatened rebellion in the Parliamentary Labour Party. In a letter sent to every Labour MP and party member Clare Short gave it as the first reason why she had decided to vote in favour of the war.

So what happened in the intervening 10 days to convince the Attorney General to change his mind? What other memos were issued, what other legal advice did the British government receive? How could Blair stand up in parliament as he did and say that he was unequivocally sure that invading Iraq would be lawful without a UN mandate when virtually every single expert on international law was saying the opposite?

This is not a ‘smoking gun’ in as much as the basic legal principles are already well-known, but it is an issue on which we can clearly hold the politicians to account. Blair can shift responsibility for the dodgy intelligence information onto the spooks, but we know that he received advice questioning the legality of the war, which he concealed from parliament, most of the government and the British public.

That does not mean that I think that Blair is ever going to be put on trial as a war criminal (despite the best efforts of George Monbiot!) because the ‘crime of aggression’ is not recognised under British law and has yet to be incorporated into the statue of the International Criminal Court (ICC). But it is significant for at least two reasons.

Labour was elected on a pledge to put human rights at the heart of its foreign policy and to strengthen international legal mechanisms. It incorporated the European Convention of Human Rights into domestic law and played a leading role in negotiating the statute for the ICC in its first term. The decision to go to war in Iraq cut across those efforts massively, yet I have never seen the policy implications of this debated anywhere.

Partly the policy flowed from NATO’s intervention in Kosovo – which also was not authorised by the UN Security Council – but this could be partly justified by the doctrine of humanitarian intervention whereas Iraq never fitted that case. It was probably for this reason that Blair made so many speeches after the war calling for international law to be re-written (although he never actually said how). Blair effectively gave up on multilateralism and the UN-based system of collective security when he decided to back an unauthorised invasion. Were the wider implications of this decision discussed anywhere?

Secondly, the fact that the legal implications of the war were never properly debated shows the weakness of Britain’s constitutional system; the lack of a formal separation of powers and checks and balances to hold the executive to account. If ever there was a time when such mechanisms were necessary it was in those crucial days when Blair realized that he was not going to get UN authorization for the invasion but decided to support it anyway. The Chilcot Inquiry should find out what happened.

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About the author
Conor Foley is a regular contributor and humanitarian aid worker who has worked for a variety of organisations including Liberty, Amnesty International and the UN High Commissioner for Refugees. He currently lives and works in Brazil and is a research fellow at the Human Rights Law Centre at the University of Nottingham. His books include Combating Torture: a manual for judges and prosecutors and A Guide to Property Law in Afghanistan. Also at: Guardian CIF
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Story Filed Under: Blog ,Foreign affairs ,Labour party ,Middle East ,Realpolitik


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Reader comments


In 1998 Dick Cheney, Donald Rumsfeld, Karl Rove, and Jeb Bush wrote an open letter to the Washington Times in which they urged the then President Bill Clinton to attack Iraq. This destroys the bull shit that “9/11 changed everything.” The Neo Cons were already demanding and planning an Iraq war 3 years before 9/11.

In 2001 When Bush took office, men in The CIA have testified that when they warned Cheney about Bin Laden, his response was…… “only bring me things on Iraq.” Again , so much for 9/11 “changed everything.” Only the American Right wing, with its huge media backing could manage to turn such complacent incompetence into making Bush/Cheney into patriotic giants in the eyes of their voters. When in fact, their incompetence cost the lives of 3000 people and they both should have been impeached.

In August 2001, I month before 9/11 Colin Powell, (not a Neo Con) giving a press conference in Egypt said that Saddam posed no threat to either his neighbours or the wider world. He also said that all his major weaponry was destroyed in Gulf war 1.

9/11 gave the Neo Cons the excuse they had been looking for to attack Iraq. Blair, having spent a decade trying to appease the Murdoch press and convince many middle Englanders that The Labour party was now going to be a pro American, good old boy supporting party suddenly found himself in the position of having to make a choice between upsetting the Neo Cons or most of his countrymen. He chose the latter. The Weapons inspectors were never allowed to finish their job because the Neo Cons knew they would not have found anything. It has now entered history that the inspectors came out of Iraq because they were not allowed by Saddam to do their job. In fact it was Bush who called out the inspectors so that he could get on with the war he was always going to start

2. Alisdair Cameron

Kamm, quoting John Rentoul, says that opponents of the war have become convinced that ‘there is a big secret that is being concealed from us, a smoking gun that “explains it all”.

Kamm and Rentoul? What a delightful pairing that is.
Their line is basically, move along now nothing to see, and if you protest to smear you as some kind of conspiracy-theory loon. Yup, there are such folk, but expressing moral misgivings,believing Blair to have been terribly blameworthy and culpable of enacting an awful course of events for improper reasons doesn’t make you such a person.

Thanks Sally, I gave the link to Ritter and Kamm’s arguments at the start of this piece basically because the argument is so well-known that I did not think it necessary to rehearse. The NeoCons did want to invade Iraq prior to 9/11 and Blair was an Americophile; that much we all know.

But this (which I had not seen when I wrote the above) raises a separate set of concerns which I would also like to see addressed

http://www.guardian.co.uk/uk/2009/nov/29/iraq-war-lord-goldsmith-letter

Interesting Conor,

But this bit pissed me off “Goldsmith was so angry that he threatened to resign ”

Bearing in mind that the guy who testified last week, the British ambassador also said he threatened to resign it shows what pigmies these officials were. Why the hell did they just threaten and instead really resign? One can only conclude that they put their own jobs a head of principle. Pretty fucking big principles mind.

It brings home the famous quote………” for evil to flourish all it takes is for good men to do nothing.”

Conor: “It seems to me perfectly plausible that the British and US governments did genuinely believe that Iraq still had WMDs prior to the invasion”

Try this instead:

According to the (secret) Manning Memo to Blair of 14 March 2002, the objective of the Iraq invasion all along was regime change – which is illegal under international law:
http://downingstreetmemo.com/manningtext.html

According to this secret memo of 23 July 2002, leaked to the Sunday Times and published on 1 May 2005, shortly before the 2005 election on 5 May:

“C [the traditional title for the head of MI6, Britain's Secret Intelligence Service - at the time: Sir Richard Dearlove] reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy.”

The final sentence is absolutely damning: “the intelligence and facts were being fixed around the policy”
http://www.timesonline.co.uk/tol/news/uk/article387374.ece

According to this source placed to know:

“(CNN) — The Bush administration began planning to use U.S. troops to invade Iraq within days after the former Texas governor entered the White House [in January 2001], former Treasury Secretary Paul O’Neill told CBS News.’”
http://www.cnn.com/2004/ALLPOLITICS/01/10/oneill.bush/

As for real motives, try this:

“In particular, Mr Waxman says proper accounting procedures were ignored when large sums of Iraqi cash were handed over by the Coalition Provisional Authority (CPA) – the US-led body that ran Iraq immediately after the war – to get Iraqi ministries functioning again.

“‘I think we’re looking at a huge scandal. The CPA handed over $8.8bn in cash to the Iraqi government even though that new government had no security or accounting system.

“‘No one can account for it. We don’t know who got that money,’ Mr Waxman said.”
http://news.bbc.co.uk/1/hi/business/6129612.stm

Try this from The Times in February 2004 on Dr Brian Jones regarding the claims made about Iraq’s weapons of mass destruction:
http://www.timesonline.co.uk/tol/news/uk/article1011171.ece

This letter of 8 July 2003 from Dr Jones to the Deputy Chief of Defence Intelligence was sumitted to the Hutton inquiry:
http://www.the-hutton-inquiry.org.uk/content/mod/mod_4_0011.pdf

The letter includes this passage:

“Your records will show that as [blanked out] and probably the most senior and experienced intelligence community official working on ‘WMD,’ I was so concerned about the manner in which intelligence assessment for which I had some responsibility were being presented in the dossier of 24 September 2002, that I was moved to write formally to your predecessor, Tony Crag, recording and explaining my reservations.”

To recap, this is the government’s famous dossier on Iraq’s WMD published for a special session of Parliament on 24 September 2002:
http://www.archive2.official-documents.co.uk/document/reps/iraq/iraqdossier.pdf

The dossier mentions no less than four times the claim that WMD can be used within 45 minutes of a command by Saddam Hussein.

Btw readers might like to file these links just in case.

If there was any real justice Blair and Bush would be put in chains and orange jump suits and taken to the Hague to stand trial for war crimes.

But justice, like history is always written by the winners.

Sally a few people did resign – like Elizabeth Wilmhurst, the deputy legal advisor of the FCO – although I agree they were relatively minor. John Denham and Robin Cook also did the decent thing. What to say about the rest . . . . .

My point is that you don’t really need a ‘smoking gun’ to find evidence of ministerial misconduct, though, the point about the legality of the war is just staring everyone in the face.

Iraq is very difficult to debate because because both sides go for ad hominem as a default position. Supporters of the invasion tend to portray its opponents as ‘appeasers of fascism’ or ‘conspiracy theory loons’ while opponents calls supporters ‘war criminals’, ‘baby murders’ and ‘oil grabbers’.

I was opposed to the invasion, which I think was the worst foreign policy decision made by the British government in a generation. That does not mean that I think everyone who supported it was evil; they were just wrong.

However, this Inquiry is also looking for evidence of ministerial misconduct and I think that on the issue of how the Government handled the legal advice it received the answer is yes.

We should note that wasn’t just Diane Abbott among Labour MPs who opposed the invasion of Iraq in March 2003.

Douglas Hurd, Malcolm Rifkind, Kenneth Clarke, John Gummer, and Edward Leigh amongst other Conservatives also opposed the war.

This is the BBC report on the Iraq debate in Parliament on 18/19 March 2003 with the vote:
http://news.bbc.co.uk/1/hi/uk_politics/2862325.stm

This reports the names of MPs who voted for the rebel amendment to the government’s motion for the war:
http://news.bbc.co.uk/1/hi/uk_politics/2862397.stm

“Supporters of the invasion tend to portray its opponents as ‘appeasers of fascism’”

Well, seeing as the supporters of the war were the same people who had been propping up the Saddam dictatorship for the previous 30 years it is a bit rich for them to try and take the moral high ground. I don’t seem to remember Donald Rumsfeld being particularly worried about the way Saddam treated his people when he flew to Bagdad in 1984 and shook hands with Saddam 2 weeks after he gassed 3000 Iraqis.

As for the resignation issue, I think it would have been pretty big news if Goldsmith had resigned saying the war was illegal. And if that had been followed up by the British ambassador in Washington also reigning I think even Alistair Campbell would have had a job spinning that one.

Would it have stopped the war? ………………………No……because Bush/Cheney were not going to bet stopped by minor issues like International law.

But at least it might have stopped the British govt form being part of it.

“I don’t seem to remember Donald Rumsfeld being particularly worried about the way Saddam treated his people when he flew to Bagdad in 1984 and shook hands with Saddam 2 weeks after he gassed 3000 Iraqis.”

Rumsfeld, as an appointed special envoy of President Reagan, did have the undeniable distiction of meeting with President Saddam Hussein on 20 December 1983:
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB82/

Sally

I don’t often agree with you, but I do agree with everything you’ve written on this thread.

Well said.

Same here – well said Sally.

I think Conor has been too generous to Blair in the original article, given the wealth of information that has come out during the years since the invasion, some of which has been referred to in this thread. I shan’t go into it, since I am sure most of it is familiar to people here.

However, with regard to the inquiry specifically, I have actually been surprised at some of the information which has been either revealed or confirmed just in the first few days.

Meyer, for instance, basically confirmed that the UN inspections in the period leading up to the invasion were a total sham and the entire timetable was being driven by the preparations for the invasion itself regardless of what Blix and his colleagues found or did not find. Of course, this means that Blair was simply deceiving the entire nation during that period, knowing that military action was inevitable.

Also interesting was Greenstock’s claim that there was some kind of authorisation for war following the passing of 1441, given that that directly contradicts his own statements immediately following the passing of the resolution itself. Of course, given that there was nobody on the other side of the desk sharper than a blunt spoon this was not picked up on. Greenstock would have been torn to shreds on the point if there had been any proper cross-examination. Still, despite the cosy, old boys’ club atmosphere of the inquiry, there have actually been some interesting moments.

Of course, it is another question entirely how much of the significant material from the inquiry will actually make it into the conclusions of the final report.

Whatever side of the decision one may be on, you cannot argue with Conor’s final paragraph.

@16: I would – the US has a formal and revered constitution, checks and balances out the wazoo, and had perhaps 1% of the pre-war debate that the UK did.

As fas as I can see, over there, the idea that the Capitalised President, with backing from Congress, didn’t have the legal right to declare war on anyone he wanted to was way further out on the political margins that the idea that Bush was not in fact the legitimate President.

Also, I don’t really get the argument that:

1. these political decisions are clearly illegal
2. there is no law against them, no court that can pronounce verdict
3. anyone who wants to change that situation wants to ‘rewrite international law’.

how can you rewrite something which, if it exists, certainly isn’t written down?

17. DisgustedOfTunbridgeWells

“‘there is a big secret that is being concealed from us, a smoking gun that “explains it all”. This is a symptom of the anti-war psychology, which so strongly disagrees with the decision made by Tony Blair, the Cabinet and the House of Commons that it seeks constantly for a hidden reason for it.’ ”

I’d argue that it’s a larger part of pro war ‘absolving responsibility’ psychology, particularly in the US.

The ‘if only I’d known’ camp – “oh how could I have possibly been such a hyper aggressive murderous cunt, I must have been lied to, I couldn’t possibly be culpable in any way.”

You know, Hillary Clinton and that fucking lot.

I agree with Conor that the people who took the decision to start a war in Iraq were quite simply wrong, rather than evil. The question is though: why did they take these decisions that were so wrong? Why did they make the assumptions that they did, which have proved to be so wrong? As Matthew Parris has said in the Independent, Blair seems to have seen support to the USA as a no-brainer; it is likely that much of the UK political establishment saw it the same way. But what is the mind-set that automatically makes the assumptions behind such a decision and doesn’t see the implications? And will an establishment committee of Inquiry be capable of getting the political establishment to examine its own assumptions?

Meanwhile quite a lot has emerged from the first week of the Inquiry, either directly or through leaks that were being saved up for this occasion. The focus is now on Blair’s meetings with Bush in March and April 2002 rather than on sexed-up dossiers. The narrative that is emerging is now substantially different from what we were told at the time. Tim Dowse, one of the witnesses on Wednesday and head of counter-proliferation at the FCO, said that they didn’t disagree with the IAEA’s conclusions about nuclear weapons. This is significant because at the time the Government said that the IAEA had got it wrong (and brought up the subject of “other evidence” which has still not been clarified). You have to wonder whether Parliament would have voted to support the invasion if the Government had admitted 10 days before that there might not be a nuclear programme in Iraq. Greenstock’s narrative on Friday was also different from what the Government was saying in 2002 and 2003: his justification of the legality of the war was based on an interpretation of Resolution 1441 that allowed the US to go to war without going back to the Security Council (“automaticity”) while back in 2003 Goldsmith’s legal justification was based on older SC Resolutions and the assertion that WMD in Iraq were an established fact. Several smoking guns, daggers, bits of lead piping and bits of rope have quietly emerged.

And yes, Conor’s final paragraph is spot-on. Those involved in our political system don’t see their role as asking tough questions. They don’t ask to see the full evidence or to hear the full argument. They are too easily bullied into giving their assent. They seem to have decided that a decision had already been taken so it wouldn’t be worthwhile to question it. All in all, a very odd sort of democracy.

@19: “All in all, a very odd sort of democracy.”

C’mon. Check out the voting figures in the debate on the Iraq war in Parliament on 18/19 March 2003 as posted in the links @9 above.

More than a few MPs in both the main parties voted against the war, as did all the LibDem MPs.

Is democracy all about voting? Isn’t it about asking questions? The testimonies so far have all had their fair share of “we never thought of that” comments. If there had been the same kind of questioning inside the political loop than was going on outside it, people like Manning and Greenstock would have been forced to think about those things.

The fact is that many MPs and two cabinet ministers – as well as members of the public – were not taken in by Blair’s rhetoric and the messages sent out by the government’s communications machine managed and manipulated by Alastair Campbell.

Clare Short: “The truth is Britain was tricked into going to war”
http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article1006101.ece

Elizabeth Wilmhurst, the deputy legal adviser in the Foreign Office resigned:

“Elizabeth Wilmshurst, deputy legal adviser to the Foreign Office, resigned in March 2003 because she did not believe the war with Iraq was legal. Her letter was released by the Foreign Office to the BBC News website under the Freedom of Information Act.”
http://news.bbc.co.uk/1/hi/uk_politics/4377605.stm

I’ve mentioned @6 above Dr Brian Jones of the Defence Intelligence Staff in the MOD and his “reservations” about the claims made in the government’s dossier published on 24 September 2002 at a special session of Parliament.

In this letter to the Guardian on 7 March 2003, almost a fortnight before the invasion of Iraq on 20 March, these eminent academic teachers of international law had no doubts about whether the war would be illegal or not:
http://www.guardian.co.uk/letters/story/0,3604,909275,00.html

FWIW I opposed the Iraq war from the start, which explains my collection of links to relating webpages.

The Independent reported long ago (sorry no links) that British troops sent to Iraq for the invasion lacked equipment to protect against use of weapons of mass destruction, the very supposed reason they had been sent to Iraq to deal with.

Conor’s last paragraph says:-

“The fact that the legal implications of the war were never properly debated shows the weakness of Britain’s constitutional system; the lack of a formal separation of powers and checks and balances to hold the executive to account. If ever there was a time when such mechanisms were necessary it was in those crucial days when Blair realized that he was not going to get UN authorization for the invasion but decided to support it anyway. The Chilcot Inquiry should find out what happened.”

I agree with him, and think that it is an important implication of the controversy over the invasion of Iraq. Kamm says that the Cabinet and Parliament voted for the invasion, but they did so only at the last moment when the die was cast. There is no record of a substantive debate in Cabinet, in which the options were considered, or the legality and practicality and objectives set out and discussed. So Manning’s testimony leaves us completely in the dark as to what was agreed when and by whom (even though he was intimately involved throughout). The picture that is forming is of Blair making decisions with his advisors without any proper consideration of the implications using his prerogatives as Prime Minister, and of his Cabinet and Party failing to question him and force him to think through the issue.

The public have never been convinced and significant numbers of MPs did vote against the invasion. But significant numbers of MPs voted for it without really understanding the issues or being able to explain why they did it. In this way a big mistake was made.


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