Lawyers Under Pressure: Thoughts on the Chilcot Inquiry

Bob Bauer
Monday, July 11, 2016, 3:43 PM

The Chilcot Inquiry into the Blair Government’s 2003 decision to go to war with Iraq examines at length the role of the lawyers under immense policy and political pressure.

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The Chilcot Inquiry into the Blair Government’s 2003 decision to go to war with Iraq examines at length the role of the lawyers under immense policy and political pressure.

The questions it takes up are the same ones actively debated in recent years in US legal and policy-making circles. Who is the “client” entitled to the advice? Are other interests beyond the client’s accounted for in that advice, and if so, in what ways? Should the advice represent the lawyer’s the “best” or “better” view” or might it be something less? How is this legal position as a matter of process properly arrived at and defended? The Inquiry’s report and conclusions, drawn from extensive testimony and document review, will and should contribute to the discussion of the lawyer’s role on this side the Atlantic too.

The central question addressed by the Attorney General, Lord Peter Goldsmith, was whether the UK government was obligated under international law to obtain Security Council approval for the use of force in the event that Iraq materially breached the terms of U.N. Resolution 1441 requiring full cooperation with the United Nations weapons inspection regime. On this point, there were competing views within the Blair Government: the lawyers were initially at odds with the policy-makers.

The nub of the conflict was the standard one in which one side appeals to text and the other to “context.” The Attorney General at first concluded that Resolution 1441, though vague in wording, was sufficiently clear. In stating that the Council had to “assess” evidence of noncompliance and whether it constituted a material breach, it meant that that the Council had to act by a “second resolution” or other clear authorization before such a breach was found to have occurred and justified the use of force. The Foreign Secretary, supported by the UK’s Permanent Representative to the U.N., Jeremy Greenstock, insisted that the ambiguous text was the product of compromise but not of principle, and that it was well understood by the other Council members that the omission of any reference to a Council “decision,” only to its “assessment,” made clear that no such second resolution or other formal Council action was necessary. The “assessment” meant only a discussion, not precluding the judgment and action of individual States. Instead, facts indicating a material breach would operate to “revive” the use of force authorization under the prior Resolution 678, clearing the way for the U.S., the U.K, and other nations to enforce compliance by military action if they so chose.

The Attorney General originally and repeatedly for a period of months held firmly to the view that this additional Council authorization for the use of force was needed. His view changed. He then came to allow for a reasonable, or “reasonably arguable,” case to the contrary. Later he went further still, advising that the reasonable case was the “better view”: separate authorization was not required if it was found as a matter of clear fact that Iraq had committed a material breach of its obligations under 1441. The Prime Minister confirmed to him that finding and by March of 2003, the Government’s legal position was set.

The record is clear that the AG’s “client” pushed hard for this change of position. The AG understood the Prime Minister to be “ultimately” the client. The Inquiry does not engage at length with this question, except to crisply counter that the “Lord Goldsmith was the Government’s Legal Adviser, not just the Legal Adviser to Mr. Blair.” It is largely with this in view that the Inquiry concentrates critically to the degree that it does on the timeliness and circulation of the Lord Goldsmith’s legal analysis to the Cabinet and to Ministers whose responsibilities for this issue of war and peace were “directly engaged.” The Inquiry Is concerned with process, which, in a Statement accompanying the Report, Sir Chilcot termed “far from satisfactory.”

By contrast, the Inquiry does not fault the AG’s legal analysis, or the sharp turn that it took in response to the prime minister’s and foreign secretary’s concerns about his original position. There is no finding that once the position was reached in final form, the AG could not have presented it to Parliament as a strong public advocate for a position on which he had privately advised in more “nuanced” terms. On this last point, the Inquiry only notes that the Attorney General’s public advocacy role before Parliament was “unusual.”

Even on the issue of process—the timing and fullness of presentation within the government—the Inquiry does not so much put the burden for timeliness and proper form on Lord Goldsmith, as it criticizes the Prime Minister for not asking for it. Its forbearance in evaluating the Attorney General’s approach, when compared to its harsh criticism of Blair, is notable.

An example is a Cabinet meeting of January 16, 2003, to which the AG was invited, as he understood it to share his legal assessment with the Ministers. He was not invited to speak, however, and he did not do so, even during the Prime Minister’s statement that the Government would strive for a second Resolution but would retain the option—by implication, legally—of acting without it. The Inquiry concludes that it “may not have been appropriate” for the Attorney General to have interjected at this point and without invitation his doubt about the legality of the very policy the PM was articulating. The most the Inquiry will say is that “it would have been advisable” for Goldsmith to have shared these views with the Foreign Secretary and the Defense Minister, and it adds that he “could have” done so subsequently “in private” with other Ministers but did not. Similarly, while critical of the absence of written advice from Lord Goldsmith on his final position, the Inquiry places the responsibility on Mr. Blair for not asking for it. (The Inquiry also notes that the majority of the Cabinet had little “appetite” for the detailed legal analysis, wanting only to know “whether or not there was a legal basis for military action.”)

The Inquiry also discusses but declines to judge critically the AG’s definition of the standard for determining acceptable legal advice. The AG is probed on his definition of a “reasonable” position, and whether there is a difference between a “reasonable” argument and a “respectable legal argument.” Lord Goldsmith relates reasonableness to the prospects for the success should a Court hear a case, and in practice, he suggests, a “reasonable” and a “respectable” legal argument are the same.

How then did one reasonable position become the “better view” of two reasonable positions? In effect, Lord Goldsmith states, the “better view” is the one he chose and that he conveyed to the Armed and Civil Services who demanded to know, yes or no, whether the Blair Government’s resort to the use of resort would be lawful. On Lord Goldsmith’s account, the “better view” is the one the lawyer relies on to give, in practical terms, the “green light” to the client and to others who require assurance about the Government’s legal position. The Services, he testified, "deserved more… than my saying there was a reasonable case" and " therefore, it was important for me to come down clearly on one side of the argument or the other."

The Inquiry does not set out clearly the grounds of its evaluation of the Attorney General’s judgments of law and process. There are certain key points about the lawyer’s role in these circumstances, and in Goldsmith’s favor, that the Inquiry appears to accept. It does not question the proposition that, in the Lord Goldsmith words, “lawyers should be "positive and constructive in helping the Government achieve its policy objectives." It does not quarrel with the view of senior policy-makers that they could disagree with their lawyers’ “draft” or preliminary advice and press them, hard, to reconsider. Foreign Secretary Jack Straw insisted that Ministers could not readily yield too much authority to lawyers over policy:

It would surely be a novel, and fundamentally flawed, constitutional doctrine that a Minister was bound to accept any advice offered… by a Department Legal Adviser as determinative of an issue, if there were reasonable grounds for taking a contrary view. Such a doctrine would wholly undermine the principles of personal Ministerial responsibility and give inappropriate power to a Department’s Legal Advisers.

Straw and the Prime Minister did both testify that if a proposed action was clearly illegal, the Government should not take it. But the legal defect must be clear, and if the competing legal arguments are “finely balanced,” the Ministers may properly urge on the lawyers the one that is consistent with the perceived policy imperative. The Inquiry does not take this to be undue pressure, or at least state clearly that it does.

In the Inquiry’s apparent acceptance of this line of reasoning, the particular context for the legal advice—the decision in 2003 on going to war—appears to have carried considerable weight. Secretary Straw distinguished “normal run of the mill legal advice and usual issues,” from “legal advice on whether it was legal for the United Kingdom to take military action.” In that latter case, Straw suggested, the lawyers had to be sure of their ground in presenting legal objections. The Government, moreover, could make sure that they were sure.

The Inquiry’s review of Lord Goldsmith’s decision-making process suggests that it was this context, proposed military action, that figured decisively in the Attorney General’s change of position. Goldsmith noted that in the past, as in Kosovo in 1999 and Operation Desert Fox in 1998, the U.K. Government was prepared to proceed with uses of force so long it could do so on a legal basis that was “reasonably arguable” or “respectable.” An argument of modest strength, one not at all certain to prevail in a judicial contest, had been deemed sufficient. In revealing testimony, Lord Goldsmith stated this about the significance to him of the Kosovo precedent:

[T]hat was the precedent that had been used and I went along with it. Not “I went along with it,” I followed the same precedent.

It is hard to see that this adjustment of the legal standard to address the perceived exigency of the policy issue is not the rough equivalent of saying that in these instances, “law” carries less weight than it does, as Straw argued, in “usual” or “normal run of the mill” cases. And that the role of the lawyers is more secondary. Certainly, on this view, Ministers may go to special lengths not to yield control over policy to the lawyers. The lawyers may well wind up “going along with” the legal position, if at least “reasonably arguable” or “respectable,” most favorable to the desired policy outcome.

The Inquiry’s Report does not develop these points; it does not explicitly embrace them. But they provide the essential background to appreciating what may have shaped the conclusions it reached, and those it avoided, specifically about the performance of Lord Goldsmith.

This attentiveness to the significance of the policy decision before the lawyers helps to explain the Inquiry’s restrained treatment of those public communications about the Government’s legal position that were lacking in “nuance,” that is, that did not reflect the uncertainties of that position. The Blair Government feared the political and diplomatic consequences of any suggestion of legal doubt about the use of force in the absence of additional Council action. In part, this was framed as a risk of sending the “wrong message” to Saddam Hussein about the U.K.’s and allies’ resolve. But the Government appreciated, too, that a legal controversy would reinforce the domestic political opposition. Alistair Campbell, the Prime Minister’s Director of Communications, noted at the time that “with the mood as it was….[the Prime Minister] knew that if there was any nuance at all, they [dissenting Cabinet members] would be straight out saying that the advice was that it was not legal…that the AG was casting doubt on the legal basis for war.”

Lord Goldsmith advised the Inquiry that he was mindful of these concerns. In presenting his legal position to Parliament, the Inquiry found, Goldsmith was careful to say that he was giving” the legal basis” for the Government’s war policy—without noting that it was open to legal question. Lord Goldsmith distinguished this “ view of the legal basis” for military action from his full “advice”—the advice that referred to the uncertainties and competing arguments. This was subtle to the point of creating certain misunderstanding. One supporter of the military action, Baroness Symons of the House of Lords, declared that no AG had ever before on a matter of similar importance given so clear a reassurance of legality. But, noting only that the AG’s advocacy role was “unusual,” the Inquiry did not find the AG’s conduct to be ill-advised, apparently making some allowance for the intense political complexity of the situation.

Of course, a legal decision-making process deemed by the Inquiry Chair to be “far from satisfactory” cannot reflect well on Lord Goldsmith. But apparently because the Inquiry acknowledges or accepts the pressures on the lawyers in these extraordinary circumstances, it’s Report refrains from judging the Attorney General too harshly or directly. It’s Report also provides considerable detail tending and may anbe intended to show that Goldsmith took his job seriously. He had suggested from the beginning that the difference in strength between the two positions on the “second resolution” were narrow, though also “key.” Because his argument was based on text, and the competing one on “context”—the negotiating history of Resolution 1441—he seems to have devoted honest effort to educating himself further on that context before concluding that an argument based on it might be “reasonable.” The Instructions he received, constituting the formal request for advice, had included reference to this alternative, contextual argument as one of two “broad views” on the legal questions. So, as it came to him, the contextual argument was presented as at least creditable, and the US lawyers had endorsed it fully. Moreover, the formal advice the AG issued to the Government was indeed carefully “nuanced,” and he stood his ground that a “second resolution” was the “safest course”, even if he also concluded that action without it would be lawful on a “reasonable” reading of the law. He also advised that his analysis was necessarily affected “by the course of events,” and that in the event that the effort to secure a second resolution failed, “we would need to consider urgently at that stage the strength of our legal case in the light of the circumstances at that time.”

The Inquiry also found that, to the Attorney General’s credit, he defended those lawyers elsewhere in the government who expressed views that displeased their superiors. Foreign Secretary Straw had reacted sharply to one such view, from Michael Wood, Legal Adviser to the Foreign and Commonwealth Office, and the AG chose to speak up on the lawyer’s behalf, writing to Straw in strong terms that lawyers within the executive must be able to given honest and independent advice without fear of rebuke. Straw responded that that it was not his intention to rebuke, but the point stood. The Inquiry commended Lord Goldsmith, characterizing his comments to Straw as “timely and justified.”

All in all, the Inquiry turns in a mixed but largely restrained judgment on Lord Goldsmith’s performance in exceptionally challenging circumstances. It leaves only so much behind that will help answer the questions about the lawyers’ role in these hardest of cases—at least not to the satisfaction of those commentators who are confident that there are comforting or easy answers. They may well chafe at the suggestion in the Report that the lawyers’ role is necessarily more limited than in the “usual” case, and that in the unusual, highly charged case, there is only so much—which is to say, not much—to be expected from debates about the best, or better, or reasonable, or respectable, or “reasonably arguable” legal theories.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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