"Out, out damn spot!"
Richard Norton-Taylor, Guardian/UK: The FO argued,
partly on the basis of intelligence, that the threat
posed by Saddam Hussein did not warrant a pre-emptive
strike. It also questioned Lord Goldsmith's
interpretation of international law and the standing
of past UN security council resolutions. Fresh
evidence about the FO's doubts were sent by Ms Gun's
defence lawyers to the prosecution on the day it
decided to abandon the case against Ms Gun.
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http://politics.guardian.co.uk/iraq/story/0,12956,1157538,00.html
Whitehall united in doubt on war
Gun was ready to expose full extent of concern throughout government departments
Richard Norton-Taylor
Friday February 27, 2004
The Guardian
The attorney general, Lord Goldsmith, agreed that
secrets charges against the former GCHQ employee
Katharine Gun should be dropped after the defence made
clear that potentially hugely damaging evidence about
the legality of invading Iraq would be disclosed in
court, the Guardian has learned.
Serious doubts about the legality of the invasion were
expressed in the run-up to war by senior lawyers
throughout Whitehall, including the Foreign Office and
the Ministry of Defence.
The doubts were expressed by the entire FO legal
establishment, and not only Elizabeth Wilmshurst, the
former deputy head of the FO's legal team who has said
publicly that she resigned last year because she was
unhappy with Lord Goldsmith's legal advice.
The FO argued, partly on the basis of intelligence,
that the threat posed by Saddam Hussein did not
warrant a pre-emptive strike. It also questioned Lord
Goldsmith's interpretation of international law and
the standing of past UN security council resolutions.
Fresh evidence about the FO's doubts were sent by Ms
Gun's defence lawyers to the prosecution on the day it
decided to abandon the case against Ms Gun.
The Guardian also understands that earlier legal
advice from Lord Goldsmith was not nearly as certain
as his final view presented to the cabinet just before
the Commons was asked to vote in favour of the war on
March 17 last year.
Whitehall officials outside Downing Street were aware
that the attorney general's earlier legal advice was
much less sure. This was likely to be disclosed had Ms
Gun's trial gone ahead, providing valuable ammunition
for the anti-war movement.
Lord Boyce, chief of the defence staff at the time,
also made it clear that there were doubts about the
legality of the war among senior military commanders
but they had come round only on the basis of Lord
Goldsmith's final legal opinion, a point echoed last
night by Clare Short, the former international
development secretary.
Lord Goldsmith and the Crown Prosecution Service
insisted yesterday that the Gun case had been dropped
simply because of a lack of evidence. They also
insisted that their decision had nothing to do with
"any advice given by the attorney general to
government in connection with the legality of the Iraq
war".
Independent lawyers said yesterday this was strictly
true in a narrow legalistic sense. Ms Gun's defence
that she had acted out of "necessity" had to do with
her belief that she had leaked the information,
published by the Observer, to prevent death and
serious injury, not because she was opposed to the
war.
It was the first time government lawyers had to face
such a defence in what was previously regarded as an
impregnable Official Secrets Act, imposing an absolute
blanket ban on intelligence officers releasing any
information about their work. The chink in the armour
was made by Lord Woolf, the lord chief justice, in an
appeal court decision allowing for a "defence of
necessity" in limited circumstances.
But lawyers familiar with the case say it was
inevitable she would want to use the potentially
damning evidence that top Whitehall lawyers harboured
serious doubts about the war. This, they said, had
been made clear to the prosecution months ago.
What the prosecution appeared not to be aware of until
the day it decided to drop the case was new evidence
presented by the defence about the nature and extent
of the doubts across Whitehall over the legality of
the war.
The prosecution was also unaware until then that the
defence demanded more documents spelling out just how
the attorney general had come to reach his pro-war
view.