Goldsmith: Why I changed my mind on Iraq

By Ian Dunt

Lord Goldsmith has finally explained why he changed his mind about the legality of the war in Iraq.

Appearing before the Iraq inquiry, the former attorney general faced sustained questioning on his reasoning in the build-up to war and why his final advice appeared to have none of the uncertainty of his previous thinking.

“To date I have kept my own counsel on most of these matters, despite the criticisms of my integrity and my professional judgment,” he said.

“But today, with a tribunal that has had access to all the documents, I have had the opportunity to deal with those questions, to explain those events and my part in them.

“Whether or not the military intervention was a matter of policy was right or wrong, I don’t think it’s for me to judge. But, so far as the legality is concerned, I did reach the view then, and still am of the opinion that it was lawful,” he continued.

“I stand by that advice. And I have tried to explain today that it was an opinion that I reached independently, having considered all the arguments and the evidence, and that it was my genuine view. That is the basis on which I have given legal advice, as a professional lawyer, for over 35 years.”

Under questioning from Sir Roderic Lyne, who has proved the most forensic and aggressive of the questioners, Lord Goldsmith admitted changing his mind on the legality of war after talks with Sir Jeremy Greenstock, Britain’s former special representative to Iraq, Jack Straw, then-foreign secretary, and the Americans.

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The meetings “satisfied” Lord Goldsmith there was no need for a second resolution and that resolution 1441 could legitimately trigger military action.

According to his evidence, American arguments that they would never have approved 1441 if it had required a second resolution eventually changed his mind.

But asked if former French president Jacques Chirac, who opposed the war, would not say the same thing about 1441, Lord Goldsmith denied the claim, and argued the French “knew and believed that there was not a need for a second resolution”.

Lord Goldsmith’s final decision on the legality of war, just days before the invasion, contained none of the caveats of a previous memo detailing the legal arguments.

While Lord Goldsmith’s previous advice had said resolution 1441 was capable “in principle” of reviving military authorisation, he conceded that “a court might well conclude that operative paragraphs four and 12 do require a further council decision in order to revive the authorisation”. He also insisted on the need for “hard evidence of non-compliance and non-cooperation”.

His final advice contained none of these qualifications, triggering suspicions that he had been leant on by Downing Street.

But media report that he had been “pinned to the wall” by Lord Falconer and Sally Morgan, Tony Blair’s political adviser, were branded “complete and utter nonsense” by Lord Goldsmith today.

Instead, he described his approach to his March 7th advice as “overly cautious”.

“With hindsight I was being overly cautious in expressing it in this way,” he told the inquiry.

The expression may be an attempt to paint his apparent change of mind in a different light. Instead of having firmed up the advice on suggestions from Downing Street, the hardening of his stance came because “our troops deserved more” than advice saying there was just a “reasonable case”, he insinuated.

“No court could deal with it,” Lord Goldsmith said.

“It was my decision. I had realised it wasn’t good enough to say there’s a reasonable case. I had to say if it was right or wrong.

“When they [the armed forces] came with their request I saw that wasn’t fair on them.”

Yesterday, senior Foreign Office legal advisor Sir Michael Wood said Lord Goldsmith’s formal advice should have been given considerably earlier.

“It was unfortunate that the advice was not given at a different stage,” he said.

“The attorney general should have been asked at an earlier stage and given rolling advice as the situation developed.

“His formal advice came very late. His views were known pretty much throughout the period – known to the prime minister and others.”

Elizabeth Wilmshurst, Sir Michael’s deputy, agreed with that point, saying the late request for the attorney general’s advice made it look “as if it was an impediment that simply had to be got over before the policy could implemented”.

She said that for the attorney general to have said the war was illegal as troops were amassing in Kuwait would have gifted Saddam Hussein an enormous PR victory.

Today Lord Goldsmith insisted his advice was respected.

“The then-prime minister made it clear it was for me to reach a judgement and for him to accept that,” he said.

But when pushed on whether it was politically realistic for him to brand military action illegal when troops were already in theatre, Lord Goldsmith insisted such matters did not concern him.

“The consequences for the government did not [matter to me],” he said.

“What did matter to me was the United Kingdom as a country and the people who would have been asking to take part in this. I did believe it was right to respond to a request from the head of the armed services. That weighed on me.”

In the opening moments of the session, Lord Goldsmith told the inquiry he had been frustrated by the government’s decision not to declassify some of the documents relating to his evidence.

“I do not agree with the decisions that apparently have been made that certain documents should not be declassified,” he said.

Sir John Chilcot replied: “That frustration is shared.”

It was the first time the chairman has expressed frustration over the declassification of documents. Earlier in the inquiry, his readiness to halt proceedings if matters of national security were raised caused concern in some quarters that his background as an establishment man may mean the inquiry had no teeth.

The Lib Dems seized on the comments this morning as evidence of a less than transparent inquiry.

“Despite Gordon Brown’s claim that he has ‘nothing to hide’ this has all the hallmarks of a cover up,” Nick Clegg said.

“Just as Liberal Democrats warned, the protocol on the release of documents is being used to gag the inquiry.”

Lord Goldsmith told the inquiry he wrote to Tony Blair in 2002 telling him he needed a second UN resolution before going to war. The letter was “not terribly welcome” he said, but may have helped the prime minister convince the American president to go down the UN route.

Asked why the letter was unwelcome, he replied: “You will have to ask Mr Blair that.”

Asked if resolution 1441 presented the UK with a difficult decision about whether it needed a further resolution before military action became legitimate, Lord Goldsmith said: “I think it did.

“From the legal point of view it would have been safer to have a second resolution because it would have put the matter beyond doubt.”

But he explained to the inquiry that he had changed his mind by February of 2002.

“My advice remained preliminary until February,” he said, but on February 27th he told Mr Blair’s aides that a “reasonable case” could be made that a second resolution was not necessary.

“That was, on past precedent, sufficient to constitute a green light.”

Striking a serious and professional tone throughout, and occasionally slipping into legalese, Lord Goldsmith expressed his apologies after making a pun.

Saying 1441 essentially translated as “this is the last straw”, he added: “No pun intended,” before taking back the sentence and insisting the matter was too serious for jokes.

The session comes a day after Sir Michael Wood and Ms Wilmshurst both effectively branded the war illegal during a dramatic day at the inquiry yesterday.

Sir Michael Wood told the inquiry: “I considered that the use of force against Iraq in March 2003 was contrary to international law.”

But he decided not to resign in protest at the decision like Ms Wilmshurst, the only civil servant to step down over the controversy.

“I may have briefly considered the matter – certainly I did when Elizabeth resigned, but my view was I should carry on,” he said.

Ms Wilmshurst was the first witness to receive a round of applause from the audience after she had given evidence.