No fear, cavalier

Airmiles was quoted in the LRB the other week:

it was clear soon after 9/11 that the Bush administration … believed that the awesome demonstration of American military muscle would intimidate present and potential enemies everywhere. The administration had its own intellectual cheerleaders and experts on the Middle East: Bernard Lewis, for instance, whose pet conviction that ‘in that part of the world, nothing matters more than resolute will and force’ was validated by the swift capitulation of the Taliban. Iraq was logically the next target. As the columnist Thomas Friedman told Charlie Rose, what the Iraqis ‘needed to see was American boys and girls going house to house, from Basra to Baghdad, and basically saying: “Which part of this sentence don’t you understand? You don’t think, you know, we care about our open society, you think this bubble fantasy, we’re just gonna let it grow? Well, Suck. On. This.”’

Which part of this sentence? Well, the grammar, for a start – it seems to make the most sense if you take out that first ‘you know’ and substitute a question mark for the comma after ‘society’, but there are a few possible readings.

If the word order is mangled, the sense is pretty clear: what Iraq needed wasn’t liberation so much as harrowing, to be carried out by a kind of frat-boy Khmer Rouge. (“Suck on this”, by crikey. What is it with fellatio and humiliation in American rhetoric?) It’s just a dream – the US Army doesn’t have the manpower to go house to house, from Basra to Baghdad; it’s hard to imagine an army that would. But that basic unreality lends it power – once you start thinking if only we had ten times as many men on the ground, then our boys could sort it out! you’re not going to look kindly on any attempt to set limits to what the troop numbers actually are, or to what the troops can actually do. Fantasy lawlessness has a way of eroding real-world law.

Coincidentally, the same day I read that, I saw Lord Bingham’s response to Lord Goldsmith in the Telegraph:

In his full written advice to the Prime Minister of March 7, 2003 — not made public at the time — Lord Goldsmith QC considered that resolution 1441 could, in principle, revive the authority to use force contained in resolution 678 and suspended, but not revoked, by resolution 687. At that time, though, it was not clear to him whether the use of force required merely a discussion by the Security Council or a further resolution.

Summarising Lord Goldsmith’s reasoning, Lord Bingham said: “A reasonable case could be made that resolution 1441 was capable in principle of reviving the authorisation in resolution 678, but the argument could only be sustainable if there were ‘strong factual grounds’ for concluding that Iraq had failed to take the final opportunity. There would need to be ‘hard evidence’.”

Ten days later, in a Parliamentary written answer issued on March 17, 2003, Lord Goldsmith said it was “plain” that Iraq had failed to comply with its disarmament obligations and was therefore in material breach of resolution 687. Accordingly, the authority to use force under resolution 678 had revived. The former judge then quoted the conclusion to Lord Goldsmith’s Parliamentary statement: “Resolution 1441 would, in terms, have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.”

Lord Bingham was not impressed. “This statement was, I think flawed in two fundamental respects,” he said. “First, it was not plain that Iraq had failed to comply in a manner justifying resort to force and there were no strong factual grounds or hard evidence to show that it had: Hans Blix and his team of weapons inspectors had found no weapons of mass destruction, were making progress and expected to complete their task in a matter of months. Secondly, it passes belief that a determination whether Iraq had failed to avail itself of its final opportunity was intended to be taken otherwise than collectively by the Security Council.”

After reading a draft of Lord Bingham’s speech, Lord Goldsmith said he remained of the view that his conclusion was correct. “I would not have given that advice if it were not genuinely my view,” he told the telegraph.co.uk law page. Why, though, did his views appear to harden between March 7 and March 17? “Having rightly expressed caution in my earlier advice, I had formed the view during the week before the 17th that it was my job to express a clear judgment one way or the other.” Civil servants and military commanders had wanted a clear answer. “Either it was lawful or it was not,” Lord Goldsmith explained. “It could not be a little bit lawful.”

As an aside, Bingham seems unimpressed by the ‘I really believed it’ defence:

“Lord Goldsmith emphasises that he believed the advice which he gave at the time to be correct — which I have not challenged — and remains of that view.”

(Emphasis added.) I guess it’s a backhanded tribute to the anti-war movement – all those ‘Bliar’ posters must really have hit a nerve. But Bingham’s right to dismiss it as a side-issue. In law, “I didn’t mean to do it” is a defence of sorts, but an “I genuinely thought it was a good idea” defence would get you nowhere.

The big question here, and the one which really goes to Goldsmith’s competence as a legal advisor, is that last one: Why, though, did his views appear to harden between March 7 and March 17? Goldsmith’s explanation is superficially plausible but, on a closer reading, alarmingly unsatisfactory. Yes, it was his job to express a clear view about the proposed attack, and no, it couldn’t be a little bit lawful – but that’s not to say, as Goldsmith implies, that legality is an on/off property which is either present or not. A judgment on the action’s legality – not whether it would be lawful in some absolute sense, but whether it passed a threshold above which it would be lawful enough – was always going to be made. Between the 7th and 17th of March Goldsmith seems to have decided, firstly, that he was going to make that judgment himself rather than leaving it to the politicians; and secondly, that he would make it on the basis that the action would be legal unless it was clearly illegal: a little bit lawful was lawful enough. It’s debatable whether it’s appropriate for the government’s senior lawyer to spare the politicians the complexities of legal advice by offering them a simple yes/no recommendation, particularly on a decision of this importance. But it’s staggering, even now, to realise that in making this recommendation he didn’t err on the side of caution, treating the action as illegal unless it was clearly legal. Accepting for the sake of argument that removing grey areas was part of Goldsmith’s job, the question here was surely “is it more or less white?”, not “is it not entirely black?”

It gets worse. Why did Goldsmith adopt an aggression-friendly reading of resolution 1441?

Having spoken to those who negotiated the terms of the resolution, Lord Goldsmith was sure that the need for a further determination had been deliberately omitted. US diplomats would not have agreed to resolution 1441 if they thought it allowed other members of the Security Council to block military action by requiring a second resolution that might be vetoed.

Brian sums up what Goldsmith’s suggesting and is appropriately sceptical:

[The government] argues that during the secret negotiations of the text of resolution 1441, Russia and France and other Council members originally wanted the resolution to specify that the Council should take a further “decision” on what to do if Iraq continued to fail to comply with its obligations: and that by agreeing to abandon that language in favour of a requirement that the Council should merely “consider the situation” (as in the text eventually adopted), they accepted that force could be used by any state without the need for a further “decision” by the Council. There is no public record of the “negotiating history” of 1441: all we have is Lord Goldsmith’s account of it, based on his private discussions with the British and American participants. [A] public inquiry should seek to establish whether the Russian, French, German and other governments agree with this interpretation, which seems at first sight far-fetched: as Lord Bingham said, it “passes belief”.

But I think scepticism’s only half of the story. Let’s assume for the moment that Goldsmith’s account is true, or at least that he believes it to be true. (As I said earlier, I don’t think proclaiming yourself not to be a liar is a defence against anything very substantial, but it’s a defence that’s readily available to almost anyone; as a result, challenging someone’s sincerity is a good way to give them an easy win.) What does it tell us about how Goldsmith approached his job? Here’s a lawyer ruling on the legality of an action, basing his decision explicitly on three UN resolutions (678, 687 and 1441). Lawyers interpret legal decisions; it’s a large part of what they do. But Goldsmith’s interpretation of the crucial resolution 1441 isn’t based on a natural-language reading; it’s not based on precedent, either, or even on the lawyer’s standby, the appeal to the interpretation of a ‘reasonable person’. Goldsmith arrives at a borderline perverse reading of 1441 – one which the text of the resolution barely supports at all – on the basis that, if the Americans had subscribed to any other reading, they wouldn’t have let the resolution pass. In short, Goldsmith’s reading was driven by his knowledge of what the US government wanted. A drive to war in Iraq was well under way, fuelled and even to some extent steered by proto-fascist fantasies like Friedman’s. Goldsmith’s approach, on his own admission, was not to bring the law to bear on the drive to war, but to take the drive to war as read and interpret the law so as to fit it. This strikes me as a disgraceful abdication of duty (to the law, not to the government – he served them faithfully). It’s only surprising that he admits to it so readily.

Meanwhile in another part of the forest, a legal authority I’ve got rather more time for at the moment is Nigel Simmonds, whose Law as a Moral Idea is currently giving my brain some useful exercise. This rather lovely formulation is from the book’s Preface:

I am also indebted to [names omitted]. A more intelligent author could perhaps have accommodated their various criticisms and insights, to the considerable improvement of the book’s argument. This author, however, has had to rest content with the imperfect pages that now lie before the reader.

I must remember to borrow that.

6 Comments

  1. brianbarder
    Posted 20 November 2008 at 22:58 | Permalink | Reply

    Terrific stuff, Phil.

    The Goldsmith ‘advice’ of 7 March 2003 is indeed an extraordinary document. Read in isolation, it comes very close to concluding that an attack on Iraq would almost certainly be illegal: it almost dismisses the opposite view as untenable, and unlikely to carry the day in a court of law. Yet only ten days later the government’s senior legal adviser was issuing his brief *public* statement, without qualification, that the imminent war would after all be legal. I’m just astonished that the 7 March document has actually been officially published (although it was beginning to be partially leaked and I suppose the powers that be, or were, decided that they might as well make sure that what came into the public domain was at least an accurate text. (That’s assuming it is!)

    There’s a fuller discussion of these issues in a post of April 2005 on my blog, at
    http://www.barder.com/ephems/194.

    Brian
    http://www.barder.com/ephems/

  2. Posted 21 November 2008 at 09:35 | Permalink | Reply

    I guessed what was on the “almost anyone” link before my mouse got there. Perhaps it’s a generational thing.

    I’m gald you mentioned that Friedmna sentence, I couldn’t work out what he was saying either and unlike you I lacked the will to try and work it out. I thought about writing a letter to ask – every time I read the LRB I think of several potential letters I could write – but I’m on about six unpublished efforts in a row now so I didn’t. (Or rather, I saved it for the far more important topic of why Daniel A Bell used the French rendering of “Zaragoza” in his review.)

  3. Posted 21 November 2008 at 18:40 | Permalink | Reply

    Interesting post, will comment on this properly some time later – although with me that could mean anything from a few hours to a few months.

    But I will ask, how are you finding the Simmonds book? I gather you’re enjoying this. If you get to speak to/listen to him speak you should, as he’s very good.

  4. Posted 21 November 2008 at 19:43 | Permalink | Reply

    Rob – …Moral Idea is the dog’s. I suspect, sadly, that Simmonds is not in fact a revolutionary Marxist, and hence doesn’t regard the *individual* rights and liberties associated with the rule of law as an intermediate stage in the development of human society (although, having read Pashukanis, he’s clearly aware of that argument). But that’s OK – when he gets his teeth into an argument he’s extraordinarily, scrupulously clear about the claims he is and isn’t making, which makes his writing unusually easy to work with & develop. Also, he mailed me straight back when I wrote to him, so he’s clearly one of the good guys.

  5. Posted 21 November 2008 at 19:51 | Permalink | Reply

    Glad to hear you’re liking it. Simmonds is a really nice guy and an absolutely exceptional legal theorist, definitely one of my favourite contemporary orthodox legal theorists. Although he isn’t a Marxist he’s really very well grounded in Marxism (one of his colleagues once remarked that he has a great unwritten book on Marxism in him). I don’t know how much of his earlier stuff you’ve read, but a lot of it is excellent, in particular he has a nice article about the place of Marxism in legal theory, as ever if you’re interested in anything it’s all on my hard-drive.

    And we definitely need to get back into a debate on international law.

  6. Guano
    Posted 24 November 2008 at 16:39 | Permalink | Reply

    Thanks. Good article. I was also puzzled by that sentence in the LRB and I wondered how Iraqis were expected to understand
    it.

    As you say, Goldsmith’s reading of resolution 1441 was based on his understandng of what the US wanted. However at the same time Blair was denying that an invasion was inevitable and was saying that Iraq could avoid being invaded if it cooperated with the weapons’ inspectors (by admitting to having WMD that it didn’t have!). Shouldn’t Goldsmith have based his reading of 1441 on what the majority of members of the Security Council appeared to want?

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