Treason of the attorney

by Gwynne Dyer

LONDON — Eighty years ago, just after the First World War and with the world rapidly sliding toward the next, the French philosopher Julien Benda wrote a book called “The Treason of the Clerks”— “clerks” in the medieval sense, educated men, intellectuals, who despite their high calling chose to serve the State rather than Truth. They were the ones who provided the justification for the wars and made them possible.

Curiously, nobody has ever written a book called “The Treason of the Lawyers.” Nobody has ever accused Lord Goldsmith of being an intellectual, either. But while the Law is not exactly the same as the Truth, it is certainly possible to betray it in the service of the State. That is what Goldsmith did, and it ended in a war.

Goldsmith was the attorney general, the chief law officer of the British government, when then-Prime Minister Tony Blair chose to join the United States in the invasion of Iraq. The particular law he betrayed was the most important law of all: the one that outlaws war. The documents that prove it came spilling out last Wednesday.

They were released by the Chilcot inquiry, an official investigation into the British decision to invade Iraq. The key question was: Did Blair understand that this war was illegal? The answer turns out to be: He bloody well should have.

Normally, private communications between the attorney general and the prime minister would remain secret forever, but the Chilcot inquiry has released them because arguments about the legality of the Iraq war have a “unique status.” So there it is at last, in black and white: what Goldsmith told Blair before he betrayed the law.

Goldsmith knew that Blair wanted to join President George W. Bush in the attack on Iraq, and that Bush didn’t care a fig for international law. Britain, on the other hand, did, and the attorney general emphasized that Bush did not have a legal leg to stand on. To invade Iraq without an explicit U.N. Security Council resolution authorizing it would be an act of aggression and therefore a war crime.

On Jan. 30, 2003, 50 days before the invasion, Goldsmith wrote to Blair: “In view of your meeting with President Bush on Friday, I thought you might wish to know where I stand on the question of whether a further decision of the [U.N.] Security Council is legally required to authorize the use of force against Iraq.”

U.N. Security Council Resolution 1441 (November 2002) demanded that Iraq open its borders to U.N. inspectors looking for its alleged “weapons of mass destruction.” The Bush-Blair line was that Iraqi WMD existed and thus justified an invasion.

However, Resolution 1441 did not authorize an invasion. As the U.S. ambassador to the United Nations, John Negroponte, said at the time, “[T]his resolution contains no ‘hidden triggers’ and no ‘automaticity’ with respect to the use of force.” If Iraq were not cooperating with the U.N. inspectors, the matter would return to the Security Council for further discussions.

Goldsmith told Blair in late January 2003 that Resolution 1441 was not enough: “My view remains that a further [U.N.] decision is required.” That was certainly not going to happen soon, because the U.N. arms inspectors in Iraq were not turning up any evidence of banned weapons — and the U.S. and Britain had scheduled the invasion for March.

There were half a dozen further written warnings from Goldsmith in the months preceding the invasion, all telling Blair that he must have another Security Council resolution before he could act. Blair would scribble notes like “I just don’t understand this” in the margin of Goldsmith’s memoranda. Eventually, Goldsmith understood that he was displeasing his master.

Then, with no new evidence to justify changing his position, Goldsmith did a complete about-turn in only six weeks, and wrote another memo three days before the invasion of Iraq saying that it was lawful even without another U.N. resolution. He sold out, and he didn’t even get paid extra for it.

Why does this matter? Because the law matters. Above all, this law matters. It is the law the U.N. was created to enforce: Thou shalt not invade other countries. Not even if they are run by bad people, or claim land that you think should be yours, or pose some real or imaginary danger to your “security.”

That was the law they made after the Second World War, the worst war in history, which killed up to 50 million people. Like most laws, it isn’t about perfect justice, just about making things safer, but it has probably saved tens of millions of lives over the years. Once or twice, when nuclear war threatened, it may have saved us all.

That is the law that Goldsmith betrayed, even though he took it seriously. His U.S. counterparts didn’t even believe in it, so there is no need for an American inquiry to reveal what went wrong in the White House. Just as well, because there wasn’t going to be one anyway.

Gwynne Dyer is a London-based independent journalist whose articles are published in 45 countries.