In January 2004 I resigned from the Special Immigration Appeals Commission
(SIAC, which I pronounce SEE-ack, but some others call SIGH-ack) because I did
not feel able to play any further part in its proceedings. I sat as
the lay member of the three-person SIAC panel (with the Chairman, a High Court
judge, and a Circuit judge who had long experience of immigration and human
rights cases) for its first ever hearing, when we allowed the appeal of a Muslim
cleric, Shafiq ur Rehman, living in the midlands with his family, against the
Home Secretary’s deportation order, issued on grounds that the man was a threat
to public security. The Home Secretary appealed against our
decision. The Court
of Appeal disallowed some of SIAC’s decisions on points of law,
and ruled, among other things, that the Home Secretary was not required to
prove, even on a low balance of probabilities, any specific activity by the
suspect as justification for deporting him: he was entitled to take a
broad global view of all the circumstances in arriving at his decision.
The Court ruled that when the Home Secretary said someone was a threat to
"national security", that needn’t mean simply the security of Britain:
activities that threatened the security of another country could indirectly
threaten Britain’s security because the other country might retaliate against
Britain’s interests. The Home Secretary had not based his argument for
calling Mr Rehman a threat to Britain’s national interests, as he could
have done, but a threat to national interests could include a threat to
national security because someone could be a threat to both (an
argument I still find baffling). And the Court ruled that the Home
Secretary could deport someone even if he hadn’t done anything specific to
justify it but because he was reasonably suspected of being capable of posing a
threat in the future. This seemed to me to leave SIAC with very little
scope for making an objective assessment of the reasonableness or otherwise of
the Home Secretary’s decisions to deport people on suspicion of activity of
which he disapproves. The Law
Lords subsequently endorsed the findings of the Court of Appeal,
and so they became legally binding on SIAC in future cases.
The development which finally decided me against remaining a member of SIAC
was the Anti-terrorism, Crime and Security Act of 2001 which gave SIAC the
additional task of hearing appeals by persons indefinitely detained without
trial by the Home Secretary on suspicion of being connected with
terrorism. These are foreigners who can’t be deported because there is no
country to which they can safely be sent. Provision for sending people to
prison indefinitely and without trial and without even being charged with any
offence is in breach of Britain’s obligations under the Human Rights Convention
and the UK Human Rights Act, but the government managed to suspend the
application of the relevant part of the Convention by declaring a "state of
emergency", even though the situation bears almost no resemblance to the
kind of one-off crisis affecting the whole population which is envisaged
in the Convention as warranting this partial suspension. It
seems quite obvious on common-sense grounds that there isn’t really an emergency
of that kind; our ministers used the procedure purely to evade the ban on
indefinite detention without trial. The whole procedure under which
suspects could be locked up for an indefinite time and never charged with any
offence has been defended by ministers partly on the grounds that the right of
appeal to SIAC is a reliable safeguard against abuse or error by the Home
Secretary. But SIAC’s scope for questioning and where necessary overruling
the Home Secretary in these cases has been so drastically limited by the rulings
on the Rehman case of the Court of Appeal and the House of Lords that SIAC can’t
really be regarded as a reliable safeguard against abuse of the detention power,
and the whole procedure is so flawed and objectionable that I finally decided
that this was the last straw and that I couldn’t conscientiously have any
further involvement in it.
When I sent the Lord Chancellor my letter of resignation from SIAC I told him
that I would be trying to bring the concerns which had caused me to resign to
public attention through the media. I have accordingly written an article
for the London Review of Books (18 March 2004 issue) setting out the
issues in full. The text
of the article is available on the London Review of Books
website. An edited
and up-dated version of the article was published in the Law section
of the Guardian on 16 March 2004. I did an interview
about SIAC and the reasons for my resignation for the BBC radio 4 Today
programme on 15 March and Channel
4 television news has filmed a longer interview which is due to
be broadcast on the Channel 4 television news programme at 7 p.m. on Wednesday,
17 March, unless the budget that day squeezes it out. I also gave the Guardian
some briefer comments which were reported,
also in the issue of 16 March, in the main news section by Audrey Gillan.
It’s hard to escape the conclusion that the intention of Parliament in
setting up SIAC as a safeguard against the misuse of the Home Secretary’s powers
to deport or detain people, without the need to charge or try them for any
offence, has been largely frustrated by the way the Court of Appeal and the House
of Lords have interpreted the law and in doing so has extended the discretionary
powers of the Home secretary so widely as to make him virtually unaccountable
for what he does. Already Mr Blunkett and his Home Office ministers are
openly considering introducing SIAC-style procedures for dealing with UK
citizens, not just foreigners, whom he suspects of involvement in terrorism but
where he hasn’t got enough hard evidence to charge them with any offence.
This is a threat to our traditional liberties against which we need to be
vigilant, and to be vigilant we need to know the facts. Please read the
articles mentioned in this piece by clicking on the links to them, and if you
share my concerns about what is happening, consider writing to a newspaper or an
internet message board or your MP or to the Home Secretary (or all of them)
explaining why you are concerned.
PS: Channel 4′s admirable home affairs reporter Simon Israel has now
performed a public service by posting on the Channel 4 website an
exclusive story about how a notorious terrorist suspect now detained under
the Anti-Terrorism Act in Belmarsh was earlier approached by MI5 — or perhaps
he approached MI5 himself –with the suggestion that he might act as an informer
for them. Very interesting stuff. Equally interestingly and
usefully, Simon Israel has also managed to lay hands on a copy of the SIAC
judgment in the same case, and has put
it on the Web: a rare chance to read a SIAC judgment in the original,
as they are almost impossible to get hold of in any other way. Thanks,
Simon, for that.
The government is launching new legislation to bring up to date existing laws for the protection of children from sexual and other abuse — but not including any attempt to discourage one of the commonest kinds of child abuse, the hitting of children by adults. Adopting the shameful euphemism "smacking" to disguise what is in fact the use of violence against smaller, weaker, least protected and most vulnerable members of our human community, the government refuses to outlaw a practice which has been banned in a large and growing number of civilised European countries. The government thus displays its usual timidity in confronting the predictable outrage of Sun, Daily Mail and Daily Telegraph readers at any hint of interference in their inalienable right to assault those for whose safety and happiness they are responsible, and who can’t imagine a better way of developing their children’s moral sensibilities than inflicting physical pain and psychological humiliation on them, thereby teaching them that violence is a proper and legitimate response to virtually any problem. Of course it’s obviously true that outlawing the hitting of children won’t stop parents continuing to "smack" their kids when their defiant or dangerous behaviour drives weary mothers or angry fathers to lose control of themselves. And equally obviously, a legal ban on hitting children can’t be universally enforceable (although it would be a useful argument to deploy against the people one so often sees bashing their weeping infants in supermarkets and other stressful environments). But the function of law is not only to prevent prohibited behaviour and to punish those who engage in it: there is also an important normative function in declaring that certain kinds of behaviour are unacceptable and unjustifiable, even if we know that they will continue. Just because innumerable drivers break the speed limit on our perilous roads every day of their lives, and it’s plainly impossible to enforce the speed limit at all times on every road, it’s not suggested that there should be no legal limit on the speed at which one’s allowed to drive on the public highway. Many other kinds of illegal behaviour, such as racial discrimination, are similarly commonplace and enforcement of many such laws can only be patchy, but that doesn’t mean there should be no laws against reprehensible and antisocial behaviour. Adults are protected by law from violence against them by other adults: yet children, far more vulnerable than adults, may lawfully be subjected to what the law (dating back to 1860) is pleased to call "reasonable chastisement", a weasel phrase which has constantly enabled serial child-abusers to get away with it. There was a time when husbands were entitled by the law to inflict "reasonable chastisement" on their wives: no doubt when it was proposed to abolish that licence, exactly the same objections were raised to its abolition as those now raised against any proposal to outlaw the use of violence against children. Our failure to ban the "smacking" of children puts us in breach of Article 19 of the UN Convention on the Rights of the Child, ratified by the UK in 1991. Yet the opportunity to put matters right is to be lost. Why are we always lagging at the rear when it comes to even modest social reform, and when will a supposedly modernising centre-left government with a huge majority in the House of Commons pluck up its courage to do what every minister must know is right and necessary?
Alastair Campbell entertained, if that’s not too strong a word, an audience of more than 2,000 people in the huge auditorium of the Royal Festival Hall on 1 March. It’s true that, as Peter Oborne (a seasoned enemy of Campbell) caustically pointed out next day in the Evening Standard, the audience "was full of earnest young Campbell acolytes in their twenties and thirties with shaven heads and glasses" (although my own rather older generation, the men bald rather than shaven headed, was quite well represented too), and that most of the questions asked from the audience in the second half of the programme were what the Australians call ‘Dorothy Dixers‘ [1], complaisant feeds to Mr Campbell of a generally unchallenging, even admiring character, if not in every case pre-arranged. Still, Campbell was often very funny, always shrewd, sometimes lacerating in his comments on his bêtes noires, the Daily Mail prominent among them. Skewering the Mail was in rather surprising contrast to his indulgent treatment of The Times, indeed of the whole Murdoch press. The Times, he said, had been the best and most straightforward of all the newspapers he had dealt with as Press Secretary ("Director of Communications") at No. 10 Downing Street. This was a useful reminder of the general support that Tony Blair and his administration have mostly received from the Murdoch organs, following Blair’s trip to Australia to see Murdoch and to meet News Limited executives on Hayman Island in 1994, before winning the 1997 election. One of the few pointed questions suggested that the exemption of the Murdoch press from Campbell’s assaults on the media might owe something to the fact that the person sitting next to him on the platform as moderator and debate manager was Ross Kemp, apparently a star of the soap East Enders but also, more relevantly, the husband of the editor of The Sun newspaper, one of the most garish and unpalatable horses in the Murdoch stable. Campbell’s response to the question was to feign amused surprise at the revelation that Kemp (one of Campbell’s holiday companions along with their respective partners) was the husband of Sun editor Rebekah Wade.
It’s charitable to assume that the title of the evening’s performance — "An Audience with Alistair Campbell" — was a rare example of self-mockery. There’s something slightly alarming, though, about Campbell’s motives for embarking on this series of public appearances before thousands of people and devoted exclusively to his own experiences and views, a colossal ego trip. Perhaps it’s no worse than publishing similar material in an autobiography or book of memoirs. In any case the mostly adoring audience, who had paid ten pounds a head for the privilege, seemed to harbour no doubts, laughing uproariously at the jokes and loudly applauding the attacks on the great man’s bêtes noires. We had all been put in a good mood before Campbell came onstage by looking around to see who else was there, and finding that the whole thing was a rally of New Labour luvvies and their camp followers from the incestuously linked worlds of politics and the media, plus a beaming Michael Portillo, already re-invented as a television personality. A slightly weird but enjoyable occasion.
[1] "Dorothy Dix was the pen name of an American journalist, Elizabeth Gilmer, who wrote a column giving advice to people with personal problems. It is believed the late Ms Gilmer made up many of the questions she responded to, and for that reason her name lives on in Australian politics. A "dorothy", or "dixer", is a question framed to suit the answer a minister wants to give." M Seccombe, Sydney Morning Herald, February 7 2004
The prime minister’s carefully crafted and thoughtful speech on 5 March in Sedgefield, justifying military action in Iraq and warning of the continued threat of global terrorism, is remarkable for a number of things, including the optimistic declaration that "the real issue… is not a matter of trust but of judgement". I’m sorry, but I’m afraid it’s an issue of trust also. In both January and February 2003, just weeks before we went to war, Tony Blair promised the British people that we would take part in military action against Iraq only if one of two conditions were satisfied: either a second resolution of the Security Council explicitly authorising the use of force, or a majority in the Council supporting such a resolution, but the resolution not adopted because of "an unreasonable veto". Neither condition came anywhere near being satisfied, but Mr Blair took us to war anyway. Not an issue of trust? It doesn’t stop there. The prime minister says that even when the September dossier was published he hadn’t known that the "45 minutes" claim didn’t apply to long-range weapons that could threaten British troops in Cyprus or indeed anywhere else. Yet his Defence Secretary knew this, presumably Alistair Campbell, working so closely with the Chairman of the JIC, knew it, so others in No. 10 must have known it: are we asked to believe that no-one bothered to tell the prime minister, even when the misleading assertion generated banner headlines about the 45-minute threat to Britain — headlines that no-one in authority thought it necessary to correct? Another issue of trust. Does the refusal to disclose the legal advice that the government was receiving on the legality, or lack of it, of a war without explicit UN authority, right up to a few days before the war began, mask real doubts even in high legal quarters within government about that legality? Was pressure put on the Attorney-General to change his advice to something more palatable to Mr Blair and, even more important, to Mr Bush? Was the decision to go to war taken first and the search for a legal fig-leaf initiated only afterwards? Publication of all that earlier advice could dispel, or confirm, that grave suspicion, yet publication is refused. An issue of trust. And perhaps the most troublesome of such issues: which of the many reasons for going to war was the real one that drove Mr Blair into this act of monumental folly? Was it, as he has sometimes said, his fear of destroying the ‘special relationship’ with the US government by leaving them in the lurch, accentuated by fear of what the Americans would do if left to act on their own without the restraining influence that Blair believed (perhaps still believes, against all the evidence) he could exert on Bush and his neo-cons? Was it because of a genuine, even if mistaken, belief that Saddam actually had WMD which the UN inspectors would never find and which would never be destroyed short of an armed invasion? Or was it because of his genuine fear that if left in power, even if he didn’t have them in March 2003, Saddam would eventually develop WMD which he could use to threaten his neighbours and ultimately ourselves, and which would sooner or later fall into the hands of terrorists — one of the arguments for war developed in the Sedgefield speech? Or was it a high-minded determination to enforce the resolutions of the Security Council of which Saddam was, or at any rate seemed to be at the time, in breach, whether the Security Council wanted its resolutions enforced by war or not: that war aim specifically identified at Sedgefield as "our primary purpose"? The Americans never made any secret of the fact that one of their objectives was "régime change", getting rid of an anti-western, repressive, oil-rich dictator: joining with the Americans in a war which included such an aim, could Mr Blair really deny (as he did at Sedgefield) that this was one of our purposes, too? Too many justifications, too many switches as each was shown up as flawed: an issue of trust.
There could hardly be a more serious charge against a political leader than that he took his country to war without stating clearly and with total honesty the real purpose of the war and its moral, political and legal justification. At Sedgefield Tony Blair stressed that “régime change alone could not be and was not our justification for war. Our primary purpose was to enforce UN resolutions over Iraq and WMD”; and: "The truth is, as was abundantly plain in the motion before the House of Commons on 18 March, we went to war to enforce compliance with UN Resolutions." Yet later he is saying that “we do not accept in a community that others have a right to oppress and brutalise their people”, “we surely have a responsibility to act when a nation’s people are subjected to a regime such as Saddam’s.” Surely something is missing here: who are these “we” who have a responsibility to intervene to remove other countries’ régimes when they cross some undefined boundary of repressiveness? Are “we” the US and UK governments acting on our own passionate beliefs, disregarding the views of much of the rest of the world? Or are “we” the countries, peoples and governments of the world acting within the framework laid down by the United Nations Charter under the leadership of a broadly representative Security Council? There’s a world of difference.
If our "primary purpose" really was to "enforce UN resolutions over Iraq and WMD", the purpose which the Attorney-General’s final opinion deployed to argue for the war’s legitimacy, how can that be squared with the resolute refusal of the majority of the Security Council to agree that the moment had come to enforce its own resolutions by going to war with Iraq — and its specific refusal, despite feverish efforts on Britain’s part (and rather less feverish efforts by Washington), to invite the US, UK, Australian and a few other countries to do the enforcing on the UN’s behalf? Tony Blair says: "The UN inspectors were in Iraq but progress was slow and the vital cooperation of Iraqi scientists withheld. In March we went back to the UN to make a final ultimatum. We strove hard for agreement. We very nearly achieved it [a breathtaking claim, incidentally]… But the Security Council didn’t agree." Is it possible that in uttering these fatal words, the prime minister didn’t realise that he was irreparably demolishing his own case? He says that "the real issue… is not a matter of trust but of judgement". Once again he evades the issue by representing it as essentially a matter of opinion: he was entitled to his judgement that Saddam’s supposed possession of WMD demanded a full-scale war, then and there, to get rid of them, just as (he concedes) the rest of us are entitled to our view that it did not. But who has given Messrs Bush and Blair the right to make their own judgements on behalf of the United Nations and to act on them whether or not the United Nations agrees with them? Only the Security Council could lawfully confer that right on Washington and London: and even when pushed hard to do so, "the Security Council didn’t agree." Much of the Sedgefield speech is devoted to re-stating the arguments for acting now rather than later to nip in the bud what could well have been a growing threat from Iraq’s development of WMD to the point where Saddam could have threatened to use them against his own neighbours and perhaps eventually against the US and the UK, coupled with the risk that international terrorists could have acquired them in Iraq once they had been developed there, and used them against the west as Osama bin Laden has already threatened to do. These arguments have considerable cogency. If Blix and his team had been allowed to finish their inspection and had reported to the Security Council that there were no WMD in Iraq after all, there would have been no war, Saddam would have remained in power, and nothing would have been done to address the risks for the future defined by Mr Blair. All that is true. But it does not follow from that analysis that Washington and London had the right, still less the responsibility or the duty, to act in the way they thought right when the only body that could have authorised the use of force refused adamantly to do so. The Security Council didn’t agree.
The questions raised by the Sedgefield speech which are of the greatest importance for the future revolve around Mr Blair’s repeated assertion that international law in its present state makes no provision for the international community (or perhaps just the US and UK governments) to act effectively and in time to deal with the new threats posed by international terrorism, rogue states, the proliferation of weapons of mass destruction, and impending or actual humanitarian catastrophes. The final section of the Sedgefield speech repeats the arguments deployed by Tony Blair at his speech in Chicago in 1999, "where I called for a doctrine of international community, where in certain clear circumstances, we do intervene, even though we are not directly threatened." At both Sedgefield and Chicago Blair takes it as read that in its present state, international law as defined in the Charter makes no provision for the use of force to deal with indirect future threats such as those posed by international terrorism, proliferation of WMD or the gross repression by a government of its own people. "It may well be that under international law as presently constituted, a regime can systematically brutalise and oppress its people and there is nothing anyone can do, when dialogue, diplomacy and even sanctions fail, unless it comes within the definition of a humanitarian catastrophe …. This may be the law, but should it be?" Leaving aside for the moment the dubious claim that international law does already authorise the use of force to pre-empt or terminate "a humanitarian catastrophe" outside the framework of the Charter, the assertion of the impossibility under current international law of acting by force to deal with indirect future threats, of whatever kind, is simply wrong. There is ample provision in the Charter for the Security Council to take or authorise whatever action it thinks necessary to deal with any conceivable threat to international peace and security, whether imminent or distant, direct or potential. What is lacking in the Charter, and what Mr Blair and the neo-cons clearly yearn for, is carte blanche for powerful states to use force to deal with what they choose to believe is a distant and indirect threat without the tiresome necessity of first obtaining the authority of the Security Council. "We surely have a duty and a right to prevent the threat materialising; and we surely have a responsibility to act when a nation’s people are subjected to a regime such as Saddam’s. Otherwise, we are powerless to fight the aggression and injustice which over time puts at risk our security and way of life…. our worry is that if the UN – because of a political disagreement in its Councils – is paralysed, then a threat we believe is real will go unchallenged…" (That "we" again!) This is like saying that if the police apply to a magistrate for a search warrant, but the system is paralysed because of a disagreement on the part of the magistrate that a search warrant is necessary, the law needs to be changed to allow the police to go ahead with the search whether or not the magistrate agrees. Indeed, it’s even worse than that: our prime minister is saying, "I believed passionately that we were right to want to search the house, but despite all my efforts of persuasion the magistrate didn’t agree and wouldn’t grant me a warrant. I couldn’t accept the risk of not searching the house, so I went ahead and conducted the search anyway. As it happened, I didn’t find anything, but I had passionately believed that there was something there to find, so I had a right and responsibility to go in and search. Now I am demanding that the law be changed so that an honest (albeit self-appointed) policeman like me shall not in future be forced to delay necessary action by the irresponsible refusal of the magistrate to agree to it." From the burglar’s point of view, it makes perfect sense to say that if the law tries to stop him burgling, the law should be changed. The householder who is burgled may be forgiven for taking a different view. The Security Council didn’t agree.
If Britain believes, however "passionately", that it is vital to use force, now, at once, to deal with a perceived threat, whether of armed attack or of terrorism or of WMD proliferation, but an obstinate Security Council takes the opposite view, then it is the task of British diplomacy to redouble its efforts to persuade a majority in the Council of the rightness of its view, and if necessary to go on arguing that case until the Council agrees. Blair says: "Do we want to take the risk? That is the judgement. And my judgement then and now is that the risk of this new global terrorism and its interaction with states or organisations or individuals proliferating WMD, is one I simply am not prepared to run." This, though, is to claim a right of decision and judgement that simply does not belong to any one individual or any one government, however powerful, unless we are prepared to stand by and watch the destruction of the carefully balanced framework of rules governing the use of force in international relations so carefully constructed after the second world war, and one that has proved more reliable, flexible and effective for the past sixty years than anyone could have any right to expect.
" I feel so passionately that we are in mortal danger of mistaking the nature of the new world in which we live." We should beware of political leaders who feel ‘passionately’ that they are right and that anyone who disagrees with them is an obstacle to doing what needs to be done. This was a characteristically honest and impressive speech, in many ways Blair at his best. Yet it betrays a frightening degree of misunderstanding of the role of rules of behaviour in international life, of Britain’s obligations under the Charter, of the dangerous precedent and example set by trampling on the Charter and going to war in defiance of the supreme body of the United Nations, and of the scope within the existing law for almost any remedial or preventive action to deal with old and new threats, provided that governments accept the need for a broad international consensus before one country takes it upon itself to bomb, invade and occupy another.
The thought of returning to the question of the legality or illegality of the Iraq war induces a vast weariness. But it is a matter of real importance and the controversy over it will continue until we are finally allowed to know much more about the legal advice received by the government, and the basis for it. The only information on this that is in the public domain is the formal advice given on the very eve of the war by the Attorney-General, a bare summary of which was published on 17 March 2003 in Hansard, given to the Cabinet on the same day but, on Clare Short’s testimony, with no opportunity for ministers to discuss it. We also know that a then Deputy Legal Adviser to the Foreign and Commonwealth Office, Elizabeth Wilmshurst, an international law expert with decades of experience, resigned because she did not agree with the Attorney-General’s opinion that the war was legal even without a further explicit resolution of the Security Council authorising it. There are reports, not so far denied, that until very shortly before the beginning of the war, the Chief of the Defence Staff and his colleagues were unhappy about the uncertainty over the legality of a war lacking new UN authority, and might even have refused to obey ministerial orders to begin hostilities for fear of exposing themselves and their servicemen and women to the charge of committing war crimes. This suggests that until the statement of 17 March, the Attorney-General’s advice might have tended to lean towards the Foreign Office lawyers’ view that a second resolution was essential for the war to be legal (assuming that Ms Wilmshurst’s opinion was shared by her FCO colleagues): or at least that the Attorney-General’s earlier view may have been more hedged about with reservations and caveats than the forthright verdict of 17 March.
Unlike Ms Wilmshurst and her FCO legal colleagues, the Attorney-General is not a specialist in international law (his background is as an expert in corporate financial law), so on the Iraq question he would have had to rely on specialist advice from other lawyers. His first port of call for this would automatically have been the FCO Legal Advisers, who themselves would have been consulting eminent authorities in the field from outside government. The Attorney-General would also himself no doubt have been seeking the views of other practising and academic specialists. There seems to be general agreement that the overwhelming consensus among the international law specialists in Britain, and perhaps in Europe too, was that a second resolution was needed for legality, which we know to have been Ms Wilmshurst’s view at the FCO. It would be strange if this had not been reflected at least in some degree by the preliminary views of the Attorney-General in his advice to the prime minister and to the other ministers and their departments principally involved. So what happened to make him change his mind and hand down the opinion of 17 March taking the opposite view? According to Baroness Kennedy QC and others, only two respected jurists were widely known to hold the minority view that existing Security Council resolutions were sufficient to provide legal authority for the use of force against Iraq without any need for a further decision by the Council. One of these two, Christopher Greenwood, a Professor at the LSE and a practising barrister who gives his "experience keywords" as "armed conflict; human rights; international law; United Nations; war", has confirmed that he gave advice on the Iraq war question to the Attorney-General, although he will not say when he did so.
The likeliest scenario, therefore, appears to be as follows. The Attorney-General, reflecting the views of the FCO legal experts and the great majority of other international law specialists, was initially doubtful whether it would be lawful to go to war in Iraq without a second resolution. But the prime minister had already committed himself firmly to President Bush as a reliable ally in any war that might prove necessary; our troops were in place; the Americans were determined to launch the attack regardless of the UN; the idea of Britain pulling out at this eleventh hour must have seemed politically, even morally, unthinkable. Yet it would have been impossible to go to war with the principal Law Officer of the Crown advising that it would probably be illegal to do so. The thought of a possible war crime charge and of British forces refusing to obey the government’s orders would have been appalling. Did the Americans, with almost as much at stake, express a view, as they had done in strikingly similar circumstances fourteen years earlier over Kosovo (see below)? The problem would have been put to the A-G, no doubt delicately, probably without explicit pressure, still less any suggestion of how it might be solved. Professor Greenwood’s views were widely known, if not widely accepted. We know that at some point, not revealed, he conveyed them in a formal opinion to the Attorney-General. They were duly embodied in the A-G’s advice of 17 March. Problem solved, or so it must have seemed at the time.
But decisions should not be made and commitments entered into before their legality has been firmly established. No doubt Mr Blair was convinced until a late stage that his famous powers of persuasion would eventually produce the second resolution that would remove all legal misgivings and warnings. Certainly that was the impression he gave in his television interviews in January and February when he said that he would take the country to war without a second resolution only if a majority in the Security Council favoured such a resolution but were frustrated by "an unreasonable veto" — neither of which conditions was satisfied: there was no majority for a second resolution and no veto, unreasonable or otherwise; but we went to war anyway. Should the legal basis for government action which is literally a matter of life and death be determined by reflecting the overwhelming consensus among the legal experts in the relevant field, or by asking one of the few experts to provide it who was known to be willing to give the most convenient advice? There seems little point in seeking a considered, properly researched opinion from the senior Law Officer if the nature of the advice is predetermined in this way, if indeed that is what happened. So far, Mr Blair has refused to make public the information on which an informed judgement of what happened could be made. Meanwhile, the Attorney-General’s advice has been widely scorned. Whatever its legal merits, it certainly seems to fly in the face of common-sense, as well as contradicting the formal explanation of vote by the UK ambassador to the UN as a co-sponsor of UNSCR 1441 immediately after the vote, a recognised element in the interpretation of resolutions.
Sadly, we have been here before, at the time of the NATO attack on Serbia over Kosovo, another case of an almost certainly illegal war lacking a UN mandate:
‘All our Nato allies were still reluctant. Initially, they insisted that the use of force only be considered if the UN security council would endorse it. That was a huge impediment, because the Russians, as permanent members, could veto any such decision. Even our staunchest ally, the British, became a big problem. In early June 1998, the administration was furious when the British, without consulting us, floated a plan to seek UN approval. Sergei Lavrov, Russia’s ambassador to the UN, had warned us that Moscow would veto any attempt to endorse the use of military force against Serbia. We had told the British this over and over. What were they thinking? There was a series of strained telephone calls between Albright and Cook, in which he cited problems "with our lawyers" over using force in the absence of UN endorsement. "Get new lawyers," she suggested. But with a push from prime minister Tony Blair, the British finally agreed that UN security council approval was not legally required. ‘ — James Rubin, US Secretary of State Madeleine Albright’s press spokesman at the time of Kosovo, Financial Times, 29 September 2000 (My emphasis.)
Publication of the full text of the Attorney-General’s eventual advice on Iraq can’t on its own dispel these worries, as Baroness Kennedy has pointed out. If the government is to be cleared of these serious suspicions, we need to know what advice the government and the Attorney-General were receiving and giving earlier from all sources, including the FCO Legal Advisers and the Attorney-General, and, if the latter’s advice changed, why it changed.
To paraphrase Oscar Wilde, to go to war illegally once may be regarded as a misfortune; to do it twice….
Young Ms Sofia Coppola, 33 this year, sprig of a famous tree, has made a beautiful, understated, subtle, funny, touching film about a middle-aged American man and a beautiful, newly-married, young American woman, both lonely, kicking their heels in the alien world of Tokyo where you either feel threatened by the impenetrability of the local culture or you see the absurdity of your cultural isolation and laugh at it, as these two do. Lost in Translation is special because it shows how the couple spend time together exploring Tokyo, experience the inevitable mutual attraction – but somehow buck the cliché and don’t go to bed together (well, actually they do, but they don’t have sex). Ms Coppola pays us the compliment of not spelling out why they don’t have sex, allowing the reasons to shine out from the two outstanding performances (by Bill Murray and Scarlett Johansson, both surely due for Oscars if there’s any justice in Tinseltown): they know that there would be no future in a relationship that depends almost wholly on fleeting circumstances, shared reactions to a temporary situation; the age difference between them is too great; both are reasonably happily married and know they would regret even a one-off betrayal of their spouses; sex would damage, not enrich, a hugely valued but ephemeral relationship. When they reluctantly part, for ever, as they know they must, the tug at our emotions reminds us of the first time we saw Brief Encounter. All of this, though, seems to have escaped the comprehension of J Hoberman, the film critic of the New York newspaper, Village Voice, quoted without apparent irony in the Guardian Friday Review (20 February 2004) as writing: “Coppola evokes the emotional intensity of a one-night stand far from home – but what she really gets is the magic of movies.” The whole point of the film is that the one-night stand which Hollywood cliché (“the magic of movies”) leads us to expect never happens. Perhaps J Hoberman left half-way through the film.
I can’t in conscience avoid saying something about this week’s two great Bugging Scandals, even though if ‘bugging’ has anything to do with planting bugs (hidden microphones), neither of them turns out to have anything to do with bugging. A sample of the assertions made in recent days by excited media, ministers, Clare Short, and others:
- The American e-mail leaked by Katharine Gun showed that Britain was bugging the offices of the UN Missions of the non-permanent members of the Security Council during the negotiations last year for a second resolution to authorise war against Iraq.
- The American e-mail leaked by Ms Gun was an invitation to British intelligence services to help them do some more bugging of the offices of the UN Missions (etc.)
- The leaked e-mail has just been published in full for the first time in a major exclusive by [delete whichever newspaper does not apply].
- If the American e-mail had been put into the public domain at the time, it might have caused such shock that it would have prevented the war and saved countless lives.
- The charges against Ms Gun have been dropped because her defence would have forced the Attorney-General to reveal in open court the full text of the advice he gave to the government in the run-up to the war in the spring of 2003.
- The advice of the Attorney-General to the government is never made public.
- Clare Short’s recollection of having seen, when she was a Cabinet minister, transcripts of Kofi Annan’s conversations in top secret intelligence reports shows that British intelligence was bugging his office.
- The revelation that Kofi Annan’s telephone calls were being intercepted came as a profound shock to him and his officials.
- Mr Scott Ritter, tireless propagator of the view that Iraq’s WMD had virtually all been destroyed in the late 1990s, is a former chief UN weapons inspector.
- Media reports of all this have been riddled with inaccuracy, misunderstanding, confusion and hot air.
Only one of these 10 assertions is true (no prizes for spotting which). Those — apparently few — who have taken the trouble to read the full text of the leaked e-mail might have noticed that it informs its British recipients that American intelligence is "mounting a surge particularly directed at the UN Security Council (UNSC) members (minus US and GBR of course) for insights as to how to membership is reacting to the on-going debate RE: Iraq" so that US policy-makers will be better informed and thus better able to get results favourable to US aims: there is no request for British help with or participation in this. The message also asks British intelligence ‘analysts’ (not those who plant bugs) to make a special effort to look out for information about then current Security Council debates and votes in the material they go through. The message was in fact published in the Observer in early March, 2003, almost exactly a year ago. Considering the rather uninteresting and unsurprising nature of its text, it’s no wonder that its publication proved to be more of a damp squib than a bombshell. The Observer of 29 February 2004 reports that Ms Gunn was disappointed to find that her leaking of the document, which cost her a night in the police cells, the prospect of an Old Bailey trial and dismissal from her job as a Mandarin translator at GCHQ, had inexplicably not "prevented the war".
The same issue of the Observer says in an editorial that Ms Gun "deserves our thanks and congratulations for her bravery and powerful commitment to the public interest" for having acted in accordance with her conscience in acting to try to prevent what she believed would be an illegal war. There’s a paradox — or what is more fashionably and inaccurately called an irony — here. Ms Gun presumably shared what is now the near-universal view that the war would be, and was, illegal because it was not approved by the Security Council. It was not approved by the Security Council because a large majority of its members, including all but two of its non-permanent members and three of the five permanent members, were not persuaded that the use of force against Iraq was justified at a time when Blix and his fellow UN weapons inspectors wanted more time to finish the job the Council had given them and when Iraq was at last showing some signs of cooperating with them. Yet Ms Gun’s proclaimed purpose in leaking the e-mail (admittedly only indirectly) to the media was to give such a jolt to the non-permanent members, by bringing to their notice the fact that the Americans were making a special effort to gather information about their voting intentions (shock, horror), that they would be stiffened in their resolve not to support a resolution that would have made the war legal. There’s not a shred of evidence that publication of the message in a British Sunday newspaper had the smallest effect on the attitudes of the non-permanents to the US-UK draft "second resolution", which they had never anyway been willing to support. But if Ms Gun’s action had produced the intended result — failure of the resolution for lack of support because of the reverberations of the leaked e-mail — it would have deprived the war of legitimacy and thus produced the very outcome that so troubled her conscience. She might have planned to plead in her defence, had her case gone to trial, that by robbing the second resolution of support by leaking the e-mail, and thus depriving of legitimacy the war on which Washington and London were bent, she would have forced Messrs Bush and Blair to give up their plans for war, since neither would dare to attack Iraq without UN authority. But it would have been extraordinarily difficult for her to sustain that argument in the face of overwhelming evidence to the contrary: Bush had repeatedly made it clear that he was going to attack Iraq and overthrow Saddam Hussein whether he had UN approval or not. The defence strategy planned for Ms Gun looks more and more unconvincing the more you look at it.
But perhaps the most unconvincing claim made for it is that Ms Gun’s defence, since it was rooted in her belief that the war would be illegal, would have enabled her to force the Attorney-General to hand over to her lawyers for use in court the full text of his advice to the government on the legality or otherwise of the war. The defence did apparently indicate that this is what they would ask for. But it seems unlikely in the extreme that the judge in the case would have sustained such a demand, since the relevant document had virtually no bearing on the case for the defence. Ms Gun had improperly copied and taken home a top secret document which she had seen in the course of her highly secret work, and given it to a friend, apparently in the expectation that the friend would pass it to the media, although that expectation is far from being established and might have been extremely difficult for the Crown to prove. She now asserts that her motivate for committing this serious offence was bound up with her conviction that the war would be illegal if not approved by the UN and that it should be stopped. The questions whether the war actually was illegal, or on what grounds the Attorney-General subsequently advised that it was legal, are pretty plainly irrelevant. There is thus no reason at all to doubt the truth of the Attorney-General’s denial that the possibility of having to produce to the defence and the court the full text of his advice on the legality of the war played any part in the decision of the Crown Prosecution Service to drop the charges against Ms Gun. It’s much likelier, surely, that the intelligence services were not prepared to agree to reveal in court extensive information about the work done by GCHQ in general and Ms Gun in particular, including perhaps a detailed exegesis of the leaked e-mail, the operations it referred to, and the extent of US-UK cooperation in communications intelligence work, all matters that would have had to be brought in evidence to prove the charge against Ms Gun or to enable her to rebut it, because of the damage that its disclosure would do to the confidentiality essential to their effective functioning, and to their relations with their American intelligence ally. When the Crown Prosecution Service saw how little material this would leave as useable evidence on which to prove the charges against Ms Gun, they were forced to conclude that it would probably be insufficient for a conviction (especially in view of the good impression Ms Gun would make on a jury, however thin her case, both as a young, patently sincere and attractive woman, and also because a jury might well have agreed with her objections to the war and accordingly have been strongly hostile to the idea of sending her to jail for acting on them). Also, as mentioned earlier, the CPS may have decided that it would be difficult or impossible to prove that Ms Gun had had the intention that the e-mail should be passed to the media when she gave it to her mysterious friend. Taking all these factors together, the decision to drop the case was probably inevitable: and not in the least sinister.
Clare Short’s case is more straightforward. By publicly revealing (on the Today show on BBC Radio 4) highly classified information which she had seen as a Cabinet minister, she was committing (a) an obvious breach of the Official Secrets Act (which applies to everyone, regardless of what work they do and for whom, and which doesn’t need to have been "signed" to be binding), (b) a breach of the indispensable trust between the intelligence and security services on the one hand and ministers and their officials on the other which must be respected if those services are to be able to function, and (c) a breach of her Privy Councillor’s oath. These multiple breaches were aggravated by her continued insistence on drawing wholly unwarranted conclusions from the fact that she had seen transcripts of the UN Secretary-General’s conversations, namely that this showed that his UN office was bugged and that it was British intelligence that had bugged it. She later admitted that the "transcripts" she remembers having seen were records of Mr Annan’s telephone conversations, not of discussions in his office or elsewhere: and since the vast majority of telephone interceptions take place between the place where a call is made from and the telephone receiving the call, mainly from satellites or taps at exchanges, that pretty well disposes of the charge that his office "must have been" bugged. Since any interception that may have taken place would have been interception of calls made or received in New York, the strong likelihood is that it would have been carried out by the American, not British, communications intelligence agency (the NSA), a possibility that Ms Short subsequently admitted.
Ms Short has thus produced no evidence that it was the British who intercepted the conversations. Literally millions of telephone messages and e-mails and faxes are daily being automatically identified (by key-words and voice identification techniques picked up by banks of computers in perhaps 30 or 40 countries that have the technical capacity to do it), downloaded and sorted according to their potential interest, translated and analysed, and the resulting analyses passed on to diplomats and officials and ministers for their background information, as well as being shared with intelligence allies. If a bunch of transcripts passed by the Americans to their British counterparts turns out to include transcripts of Kofi Annan’s conversations, is it seriously suggested that we should fastidiously refuse to read them, perhaps returning them to the NSA with a pious request not to do it again? To call this huge operation “bugging the Secretary-General’s office” or “spying on UN diplomatic delegations” is seriously misleading. The monitoring of a huge volume of communications from all over the world produces a great deal of valuable information, often casting doubt on scare stories, bluffs and threats by other countries’ governments, providing useful insights into their real thinking: often confirming the genuineness of what they are telling us even when it seems implausible. How it’s done and, within limits, to whom, is tightly controlled by a raft of secret rules and instructions approved by ministers, and monitored by the parliamentary committee on intelligence and security. It’s difficult to see how else it could be made more accountable or transparent without destroying its effectiveness. Every country that can do it, does it. Every serious country is a target as well as an interceptor, and knows it. On the rare occasions when a specific act of interception is made public, the victim invariably professes horror and amazement, makes solemn protests, and generally puts on a magnificent act of injured innocence. It’s pure theatre.
Overall, this international practice, however grubby it might appear to the fastidious, is beneficial: the better informed governments are about each other’s real intentions and fears and perceptions of their interests, the safer the world becomes. For Britain alone to deprive itself of this information tool would not just be quixotic: it would be daft. (There’s also the absolute need to do it as a vital means of breaking into the communications of terrorists, who — sadly — aren’t just a figment of George W Bush’s or David Blunkett’s imagination.)
One postscript: Clare Short was by general consent an outstanding, effective and much admired Secretary of State for International Development. Her presence in Mr Blair’s Cabinet provided a kind of reassurance to many, especially to Labour Party members and supporters in the country, that the government was unlikely to get up to any really sordid tricks for fear of prompting Ms Short’s resignation, thanks to her well-known conscience. Her habit of sometimes speaking indiscreetly, forcefully, and on occasion impetuously, made her an attractive contrast with her greyer colleagues. But semi-calculated indiscretion can easily lapse into self-indulgence fuelled by vanity and self-regard. And, unless you’re Peter Mandelson, you can only resign once.
