The Bloody Trail From Downing Street to DC




I

n
“The Crime of War: from Nuremberg to Fallujah” (


Z
Magazine

, February 2005), I described how the war in Iraq constitutes
aggression as it is defined under international law. At the time
I was writing that report, discussions of legality within and between
the U.S. and British governments were closely guarded secrets and
I had to take their public statements as indications of their legal
position. 


Now,
nine leaked British documents have laid bare the British side of
those discussions and revealed that British law officers explicitly
and consistently advised their government and their U.S. counterparts
of the illegality of the U.S. war plan. In response to their advice,
the two governments hatched a “clever plan” to create
a legal pretext for war, but the plan failed when the UN Security
Council rejected it, leaving them with a stark choice between war
and legitimacy. 


The
United States government belatedly attempted to claim legitimacy
for the war based on a unilateral interpretation of the principle
of “revival”—that the “formal ceasefire”
declared in Resolution 687 (1991) was conditional on Iraq’s
ongoing compliance with the other terms of that resolution; that
Iraq’s alleged “material breach” of certain articles
of that resolution could result in a “revival” of the
authorization of military force contained in Resolution 678 (1990);
and that certain clauses of Resolution 1441 (2002) were intended
to act as an automatic trigger for such a “revival” without
further action by the Council.


 



British
legal advisors considered this U.S. argument and rejected it, but
both governments had long ago chosen war over legitimacy. The British
documents show that they were already committed to “regime
change” in Iraq by April 2002. Britain’s Ministry of Defense
and two senior U.S. generals have confirmed that offensive military
operations began in May 2002, without authorization from the U.S.
Congress, the British Parliament, or the Security Council.


 




The Iraq Liberation Act of 1998 



R

evival
was first introduced to justify the establishment of the southern
no-fly zone in August 1992 and it was sufficiently controversial
that a ruling was requested of the UN legal counsel, Carl-August
Fleischauer. He ruled that it was legitimate in that situation,
involving limited, proportionate, and arguably humanitarian action
soon after the end of major hostilities. The U.S. and UK later cited
revival as justification for military action in December 1998, but
this was not approved by the Council and Russia withdrew its ambassadors
from Washington and London to protest U.S. and British military
action.




 



The
attack on Iraq in 1998 was preceded by important developments in
U.S. policy. In February 1998, 40 self-styled “prominent Americans”
signed an open letter to President Clinton, calling on the U.S.
government to recognize Ahmad Chalabi’s Iraqi National Congress
as the official government of Iraq. The signers included Paul Wolfowitz,
Richard Perle, Richard Cheney, Donald Rumsfeld, James Woolsey, Douglas
Feith, Richard Armitage, Frank Carlucci, James Woolsey, and Zalmay
Khalilzad. The same group then lobbied Congress to produce the Iraq
Liberation Act of 1998, which declared support for “efforts
to remove the regime of Saddam Hussein from power in Iraq”
to be the official policy of the United States government. The bill
passed overwhelmingly in the House, unanimously in the Senate, and
was signed into law by President Clinton.


The
leaked British documents show that, when Prime Minister Blair threw
his support to the U.S. policy of regime change in March 2002, his
legal advisors repeatedly told him that regime change could not
be a legitimate policy goal under international law. Why didn’t
legal advisors in Washington raise the same red flags in 1998 as
their British counterparts did in 2002?  


The
U.S. government has violated domestic and international law in pursuit
of similar policies in the past, but Congress moved to investigate
and curb such violations in 1975-1976 and again in 1982-1986. The
UN General Assembly condemned the U.S. invasion of Panama in 1989
as “a flagrant violation of international law,” but congressional
hearings that were scheduled to investigate those charges were indefinitely
postponed. 


At
the same time that Congress was adopting this policy of supporting
regime change in Iraq, the British and U.S. governments were taking
covert action to keep Iraq’s alleged weapons programs in the
public mind. Former chief weapons inspector Scott Ritter told the
British parliamentary enquiry into the death of Dr. David Kelly
that he was recruited by MI6 in 1997 to take part in Operation Mass
Appeal. This operation planted stories about Iraq’s alleged
weapons programs in newspapers in Poland, India, and South Africa
so that they would filter back to media consumers in Europe and
North America. This falls within long-established practice of Western
intelligence agencies, which frequently employ journalists as agents
to shape popular opinion. It also helps to explain why so many people
in the U.S. continued to believe that Iraq still possessed these
weapons even as our government failed to produce any evidence of
their existence. 


The
“prominent Americans” took their next step toward regime
change in Iraq on September 11, 2001. At about 2:40 PM that afternoon,
Donald Rumsfeld ordered his subordinates to draw up a plan to attack
Iraq. Notes taken by one of his aides quote him as saying he wanted
“best info fast. Judge whether good enough to hit Saddam Hussein
at same time. Not only Usama Bin-Laden. Go massive. Sweep it all
up. Things related and not.” 



The First Six Documents 



T

he
first batch of six leaked British documents date from March 2002;
they were leaked to the


Daily
Telegraph

in September 2004. They include: 



  • an
    Options Paper written for Blair by his Defense and Overseas Secretariat


     



  • a
    Legal Background Paper


     



  • a
    memo from foreign policy advisor Sir David Manning to Blair on
    meetings with Condoleeza Rice


     



  • a
    memo from British Ambassador Sir Christopher Meyer to Manning
    regarding a meeting with Deputy Secretary Wolfowitz


     



  • a
    letter to Foreign Secretary Jack Straw from Political Director
    Peter Ricketts


     



  • a
    memo from Straw to Blair


     



The
Options Paper and Legal Background Paper were dated March 8, 2002
and were evidently drawn up in response to an initiative on Iraq
from Washington. The Options Paper spells out two choices: toughening
the containment policy or regime change. It called the latter “a
new departure, which would require the construction of a coalition
and a legal justification,” and went on to say, “A full
opinion should be sought from the Law Officers if the above options
are developed further…. Of itself, Regime Change has no basis
in international law.” On the U.S. position, it said, “The
U.S. has lost faith in containment” and also, “Washington
believes the legal basis for an attack on Iraq already exists.” 


The
Legal Background Paper explained that the U.S. government had argued
for interpretations of Security Council resolutions on Iraq that
were neither supported by the language of those resolutions nor
shared by other Council members. The no-fly zones were set up to
protect the civilian population and the paper rejects a U.S. claim
that they could be used for a different purpose—to “enforce”
Iraqi compliance with resolutions 687 and 688. Also, the U.S. had
argued that an individual member state could make an independent
determination that Iraq was in breach of one of the Security Council
resolutions without the agreement of the Council. The paper rejects
this claim too, adding, “We are not aware of any other State
which supports this view.” While addressing and rejecting these
unilateral U.S. positions, the paper does not address any legal
justification the U.S. may have advanced for regime change, which
of course had no basis in any of these resolutions.  


The
Options Paper said that the U.S. was pushing for an invasion in
the fall of 2002 and six months would be needed to make the necessary
military preparations, leaving the prime minister very little time
to make a decision. He was due to meet with President Bush at Crawford
in early April. In conclusion, the paper suggested “a staged
approach, establishing international support, building up pressure
on Saddam, and developing military plans.” 


The
memo from Manning to Blair on March 14, 2002, marked “Secret—Strictly
Personal,” indicates that Blair had by then made up his mind
to fall in line with the U.S. policy of “regime change”
and insisted only that it be “very carefully done.” 


“I
had dinner with Condi on Tuesday,” the memo states, “and
lunch with her and an NSC team on Wednesday (to which Christopher
Meyer also came). These were good exchanges, and particularly frank
when we were one-on-one at dinner. We spent a long time at dinner
on Iraq. It is clear that Bush is grateful for your support and
has registered that you are getting flak. I said that you would
not budge in your support for regime change but you had to manage
a press, a Parliament and a public opinion that was very different
than anything in the States. And you would not budge in your insistence
that, if we pursued regime change, it must be very carefully done
and produce the right result. Failure was not an option. Condi’s
enthusiasm for regime change is undimmed. But there were some signs,
since we last spoke, of greater awareness of the practical difficulties
and political risks. From what she said, Bush has yet to find the
answers to the big questions: how to persuade international opinion
that military action against Iraq is necessary and justified; what
value to put on the exiled Iraqi opposition; how to coordinate a
U.S./allied military campaign with internal opposition (assuming
there is any); what happens on the morning after?…. I think
there is a real risk that the Administration underestimates the
difficulties. They may agree that failure is not an option, but
this does not mean they will avoid it.” 


Chilling
words, showing that Blair had agreed to regime change before even
beginning the effort to construct a legal basis for it or to address
its many practical flaws. 


On
March 17, 2002, Ambassador Meyer met with Wolfowitz and reiterated
the same points. He told Wolfowitz, “We backed regime change,
but the plan had to be clever and failure was not an option….
I then went through the need to wrongfoot Saddam on the inspectors
and the UN SCRs and the critical importance of MEPP [Middle East
Peace Process] as an integral part of the anti-Saddam strategy.”
He reported all this to Manning in a memo marked “Confidential
and Personal” on March 18. 


The
notes from Ricketts to Straw and then from Straw to Blair on March
25, 2002 detail some of the problems the Foreign Office had identified
in the U.S. plan. Straw told Blair that the British strategy had
to be based on international law and therefore on Iraq’s “flagrant
breach” of its obligations under the UN-mandated inspections
regime. He wrote, “I believe that a demand for the unfettered
readmission of weapons inspectors is essential, in terms of public
explanation, and in terms of legal sanction for any military action.”
He warned of two “potential elephant traps,” namely the
illegality of regime change and the question of an additional mandate
from the Security Council. “The U.S. are likely to oppose any
idea of a fresh mandate. On the other side, the weight of legal
advice here is that a fresh mandate may well be required.” 


Two
weeks later, Bush hosted Blair at his ranch in Texas. At the joint
news conference after the meeting Bush announced, “I explained
to the prime minister that the policy of my government is the removal
of Saddam, and that all options are on the table…. The world
would be better off without him and so will the future.” Bush
was committed to this policy and Blair was now committed to supporting
it through a “clever plan” to generate support and provide
legal justification. A reported incident at the White House in March
2002 made Bush’s position even clearer. Some Republican senators
were meeting with Rice when Bush stopped by for a chat. Somebody
mentioned Saddam Hussein, to which Bush responded “Fuck Saddam!
We’re taking him out” (Eisenberg,

Time,

5/5/02).





The
British documents make it clear that Blair’s more nuanced public
statements during this period were dishonest. After diplomatically
endorsing regime change, he told the press conference at Crawford,
“How we now proceed in this situation, how we make sure that
this threat that is posed by weapons of mass destruction is dealt
with, that is a matter that is open. And when the time comes for
taking those decisions we will tell people about those decisions.” 


Between
April and July 2002, the plan proceeded. The war in Afghanistan
had led the U.S. public to believe that war was not such a terrible
prospect and that the latest generation of U.S. military technology
could win any battle quickly and easily. After September 11, 2001,
the Congress and U.S. media companies felt bound to support the
“war on terror” even as it shifted its focus and its purpose.
The public expressed little anxiety regarding the prospect of war
in Iraq, but was still easily panicked by color-coded terrorism
alerts. 



Downing Street Memo 



T

he
Downing Street memo is actually the minutes of a prime minister’s
meeting on Iraq, attended by Blair and his advisors on July 23,
2002. The Cabinet Office Paper is an incomplete transcript of the
paper that was distributed to the participants in preparation for
this meeting. 


The
opening summary of the Cabinet Office Paper invites ministers to
“agree that the objective of any military action should be
a stable and law-abiding Iraq,” but the four paragraphs on
“justification” describe the equally elusive quest for
a law-abiding UK and U.S. The fundamental illegitimacy of U.S. policy
was still the central problem: “U.S. views of international
law vary from that of the UK and the international community. Regime
change per se is not a proper basis for military action under international
law.” Yet “U.S. military planning unambiguously takes
as its objective the removal of Saddam Hussein’s regime.” 


The
paper presciently describes the train-wreck that occurred when the
timetable for the invasion collided with the time required for thorough
inspections in March 2003. Iraqi obstruction was essential to the
pretext for war, but it would probably not happen in the early stages
of the inspection process. This section of the paper concludes,
“We would be most unlikely to achieve a legal base for military
action by January 2003.” 


John
Scarlett, the chair of the Joint Intelligence Committee, stated
at the outset of the meeting that only “massive military action”
would be likely to accomplish “regime change.” Sir Richard
Dearlove, the head of MI6, then told the meeting that there had
been “a perceptible shift in attitude” in Washington and
that “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.” 


Admiral
Sir Michael Boyce, the chief of the defense staff, described two
military options: Running Start involved a gradual escalation of
the bombing campaign to provoke the Iraqis into defending themselves,
escalating eventually to all-out war. He called this a “hazardous
option” and seemed to prefer the other choice, Generated Start,
involving 250,000 U.S. troops, with a 72-hour bombing campaign to
be followed by a move on Baghdad. 


Defense
Secretary Geoff Hoon spoke of “spikes of activity” that
had already begun “to put pressure on the regime.” Most
Americans can remember incidents from this period that were reported
as Iraqi threats to allied aircraft patrolling the no-fly zones,
with U.S. and British planes responding by “targeting radar
sites.” Critics of U.S. policy suggested at the time that this
was a cover for a low-grade bombing campaign to degrade Iraqi defenses
in preparation for an invasion. 


Britain’s
Ministry of Defense has now published its figures for allied missions
flown and tonnages of bombs dropped on Iraq between 2000 and 2002.
The total tonnage of bombs dropped on Iraq in 2000 was 155 tons.
This fell to 107 tons in 2001. By contrast, in six and a half months
between May and the second week in November 2002, allied planes
dropped 820 tons of bombs on Iraq, including a massive air raid
in September 2002 by a combined fleet of 100 planes, apparently
linked to a decision taken on August 5 to proceed with a “hybrid”
of the Running and Generated Start plans.


 



On
July 17, 2003, USAF General Michael Moseley, who commanded this
bombing campaign, told an allied briefing at Nellis AFB in Nevada
that it “laid the foundations” for the invasion,





and
General Tommy Franks has confirmed the nature and purpose of this
campaign in his autobiography,

American Soldier

. The United
States and Britain had already launched an undeclared air war. 


Foreign
Secretary Jack Straw had scheduled a meeting with Secretary of State
Powell after the prime minister’s meeting and promised to discuss
with him the timeline outlined by the defense officials. He understood
that Bush was committed to war, but thought the timing was not yet
decided. “But the case was thin. Saddam was not threatening
his neighbors and his WMD capability was less than that of Libya,
North Korea or Iran. We should work up a plan for an ultimatum to
Saddam to allow back in the UN weapons inspectors. This would also
help with the legal justification for the use of force.” 


Then
it was Lord Goldsmith’s turn. He said “that the desire
for regime change was not a legal basis for military action. There
were three possible legal bases: self-defense, humanitarian intervention,
or UNSC authorization. The first and second could not be the base
in this case.” 


Then,
“the Prime Minister said that it would make a big difference
politically and legally if Saddam refused to allow in the UN inspectors.
Regime change and WMD were linked in the sense that it was the regime
that was producing the WMD…. If the political context were
right, people would support regime change. The two key issues were
whether the military plan worked and whether we had the political
strategy to give the military plan the space to work.” Ever
the politician, Blair, like Bush, had a sense of what would work
politically, but his only legal strategy was to hope that Iraq would
cooperate by barring the inspectors. 


More
reservations were expressed regarding the workability of the U.S.
battle plan, and Straw urged “discreetly exploring” an
ultimatum on the inspectors. He was confident that Hussein would
play into their hands by “playing hardball with the UN.”
Hoon “cautioned that many in the U.S. did not think it worth
going down the ultimatum route. It would be important for the Prime
Minister to set out the political context to Bush.” 


The
minutes ended by concluding, “We should work on the assumption
that the UK would take part in any military action,” but that
the extent of British participation was still in question. The Foreign
Secretary would “discreetly work up the ultimatum to Saddam”
and “the Attorney-General would consider legal advice with
FCO/MOD legal advisers.” 


Americans
demanding congressional action have seized on Dearlove’s statement
that “the facts and intelligence were being fixed around the
policy” as a “smoking gun,” proof of the lies told
by Bush and his subordinates. While many of the political aspects
of the plan were actually “clever,” not one piece of “fixed”
intelligence ever stood up to serious scrutiny and responsibility
for the result must also be shared by those who knew this, but remained
silent. 


The
plan moved forward through the fall of 2002. Bush presented his
ultimatum to the UN; he issued his controversial “doctrine
of preemption” as part of the National Security Strategy of
the USA (2002); and the U.S. Congress debated the resolution to
authorize war. Senator Bob Graham, the chair of the Select Intelligence
Committee, told anyone who would listen that real intelligence on
Iraqi WMDs had yet to be presented—but fear, mystification,
and political calculation were enough to win the day. Graham’s
colleague from Florida, Bill Nelson, reported on his website that
his constituent correspondence ran nine to one against the resolution,
but he voted for it anyway. 


Bush
made his infamous State of the Union speech in which he identified
81 mm rocket casings as centrifuge parts and imaginary stockpiles
of 12-year-old degraded chemical and biological agents as potent
threats (of the items cited, only mustard gas has a shelf-life of
more than five years), among a litany of bogus claims. Powell gave
his equally disgraceful presentation to the Security Council, after
reportedly throwing Lewis Libby’s first draft of it up in the
air and saying, “I’m not reading this. This is bullshit.”
Proponents of peace debunked the lies, but no prominent opposition
figure emerged to lead them. Mainstream U.S. media efficiently marginalized
serious questions and anti-war views. 



The Legality of the Iraq Invasion 



T

he
last of the leaked British documents is the full legal advice given
to Blair by Lord Goldsmith on March 7, 2003, 12 days before the
war officially began.







In this
document, Goldsmith dismissed most of the rationales for war that
have been widely accepted by the U.S. public, leaving only the “revival”
of the Security Council’s authorization of force in 1990 as
a possible but highly tenuous justification for the invasion. He
made it clear that U.S. officials had now adopted this as their
legal position and he was clearly worried that unilateral interpretations
of Security Council resolutions were being used as a lever to open
the door to actions that were neither authorized by any of those
resolutions nor otherwise permissible under international law. 


He
identified the following flaws in the U.S. position: He rejected
Bush’s doctrine of preemption relating to “danger in the
future” as opposed to the “right to respond proportionately
to an imminent attack.” He wrote, “This is not a doctrine
which, in my opinion, exists or is recognized in international law.” 


While
accepting the basic principle of revival, he writes, “The UK
has consistently taken the view (as did the Fleischauer opinion)
that…it is for the Council to assess whether any such breach of
those obligations has occurred,” and “only the Council
can decide if a violation is sufficiently serious to revive the
authorization to use force.” 


He
rejected the possibility that, because the U.S. interpreted Resolution
1441 differently from Britain and other Council members, the resolution
might not legally constrain the U.S. to the same extent as the UK.
The U.S. interpretation “reduces the role of the Council discussion
under OP12 [of Resolution 1441] to a procedural formality….
I remain of the opinion that this would be the effect in legal terms
of the view that no further resolution is required. The Council
would be required to meet, and all members would be under an obligation
to participate in good faith, but even if an overwhelming majority
of the Council were opposed to the use of force, military action
could proceed regardless.”  He insisted that any military
action be limited to what was necessary to enforce the terms of
the cease-fire. As he had said all along, “Regime change cannot
be the objective of military action.” 


In
reviewing this document, I find a number of additional flaws in
his arguments in favor of revival and in his interpretation of Resolution
1441 (2002): 



  • The
    concept of revival has no basis in the language of Resolutions
    678 (1990) or 687 (1991) 


  • The “formal
    ceasefire” was neither temporary nor conditional on Iraq’s
    future behavior nor was there any provision for a revival of the
    authorization of military force 

  • Revival is superfluous
    or even detrimental to any legitimate purpose since the Security
    Council already has all the power it needs to authorize military
    action whenever that is really what it means to do 


Goldsmith
writes that he relies on “the previous practice of the Council”
for his interpretation that “serious consequences” in
Resolution 1441 (2002) is equivalent to “all necessary means”
in Resolution 678 (1990). This is not borne out by the record. The
past practice of the Council has been to use “all necessary
means” to authorize military force, and “serious consequences”
to retain greater flexibility, and this was how other members interpreted
these terms in this case. 


While
Goldsmith gave great deference to the “strength and sincerity”
with which the U.S. presented their arguments, he did not ultimately
find their position defensible under international law and he warned
Blair of several legal avenues by which he and the British government
could face prosecution for international aggression or murder. When
the invasion proceeded in the face of the British legal officers’
consistent objections, Elizabeth Wilmshurst, deputy legal advisor
to the Foreign Office, resigned along with two of her colleagues.
Her letter of resignation has since been made public. It referred
to the invasion as a “crime of aggression” and ended,
“I joined the office in 1974. It has been a privilege to work
here. I leave with very great sadness.” 


The
upshot of all this has been precisely what the UN Charter was designed
to prevent: the invasion and occupation of a smaller country by
two larger and more powerful ones. We are now engaged in an intractable
war whose principal victims are the civilian population of Iraq.
Researchers from the Johns Hopkins School of Public Health have
estimated that at least 100,000 people have died and have concluded
that U.S. and British air strikes have been the leading cause of
violent death among civilians in Iraq since March 2003. This conclusion
is supported by Iraqi Health Ministry reports and dramatically contradicts
the impression conveyed by the “embedded” media that insurgent
forces have been responsible for most of the violence in Iraq. 


These
documents reveal that the governments of these two powerful countries
were unable to honestly reconcile their own economic and strategic
interests with their responsibilities under international law and
their obligation to act in good faith in the interest of international
peace and security as permanent members of the UN Security Council.
As a result, they adopted positions and negotiating strategies that
were deliberately designed to circumvent the letter and the spirit
of the UN Charter. In order to restore a minimum of legitimacy to
U.S. foreign policy: The U.S. Congress should investigate all serious
charges against the United States government and its officials,
from perjury to international aggression, examining the evidence
in these British documents and obtaining access to relevant U.S.
documents; the United States government should diplomatically and
publicly assure the governments and people of the world that it
will now and in the future abide by treaty commitments and customary
principles of international law in accordance with Article VI of
the United States Constitution; U.S. policies that presume the non-existent
right claimed by the “doctrine of preemption” should be
rescinded and the National Defense Strategy of the United States
of America (2005), which is largely based on this doctrine, should
be substantially revised; after two years of inconclusive warfare,
“Coalition” forces should halt military operations and
withdraw from Iraq. The UN should assume its legitimate function,
to assist the Iraqi people as they pick up and put back together
the pieces of their broken country and determine their own political
future.





Nicolas J. S.
Davies lives in Miami, Florida and is a student of U.S. history and
foreign policy. An earlier version of this article appeared in Online
Journal.