Friday, July 16, 2004
The Minority Report

Now that the second coat of whitewash has been liberally applied to the Blair Government and the Iraqis are in control of their own destiny (I was being 'ironical', by the way), a window of opportunity has arisen to reflect on the war in/on/with/against/for/over Iraq.

We have reached a stalemate. It is unlikely there will be any further 'reports'; opinion is now so entrenched and polarised that whatever new information arises, no one is going to change their mind; and besides, we had Euro 2004 to take our minds of it for a while.

Alas, we have to live with the reality that there will never be any definitive answer to whether the war Iraq was justified. There will be no scientific proof and therefore no 'closure'. It will just fester in our minds, until something else sufficiently distracts us from the nuisance of this unresolved, highly important and emotive issue.

It was doomed from the start: pre-emption is inadmissible in a legal context. You do not get a speeding ticket even if you wanted to break the limit but were cajoled not to by a nearby speed trap. This is not being caught 'in the act' or even 'with blood on your hands'. This is why police 'stings' are so intricately planned - the arrest can only be made once the crime has been committed. (However 'Pre-Crimes', celebrated by Tom Cruise in 'Minority Report', are creeping into UK law. It is now a criminal offence for an adult to lie to a child on the Internet, if it is considered they are 'grooming' them for an illegal act.)

Pre-emption is a political construct and pre-emptive action is therefore an overtly political act; but not one without precedent in the prosecution of war. Israel bombed its Arab neighbours' air forces on the ground in 1967 long before they had a chance to take off and bomb Israel - as Israeli military planners believed they were going to do. The Soviet Union invaded Afghanistan to pre-empt the fall of a pro-Soviet regime. In the 12 years to Gulf War Part II, medium intensity bombing had taken place over Southern Iraq in order to pre-empt Saddam from establishing defensive military structures on its borders with the US backed Arab countries of Kuwait and Saudi Arabia.

But despite a precedent, pre-emption always requires a strong political objective. But to make things more difficult, a pre-emptive war could never have UN backing. Had Bush-Blair followed the direct political route (as occurred in Serbia and Kosovo), Iraq may well be at greater peace than it is now. No one disagrees with Blair-Bush-Howard when they attempt to assuage media opinion by resorting to the 'Saddam was a bad man' story - as is increasingly the case now the legal justification has unravelled. No one suggested that Slobodan Milosovic was a 'good guy'.

On Blair's insistence, Bush was persuaded to go to through the UN for a favourable resolution. Therefore the justification for a pre-emptive war had to be transformed into a pseudo-trial of whether Saddam had weapons of mass destruction or not. This would sit more comfortably with the traditions and conventions of the UN Security Council in making 'international law'. To bulldoze the prosecution's case through the 'court', intelligence was massaged, trimmed down and had the caveats removed. Was it 'sexed-up'? Definitely, in most people's understanding of the term. (Though clearly not Lord Hutton's.)

Two genuinely whitewashed UK reports and numerous US Senate inquiries (under different guises) have revealed that the intelligence used was too reliant on drunken dissidents and that senior planners were only too happy to see the intelligence bolstered by political judgement to be given the status of 'evidence'.

But caging a political strategy in legalese was always going to problematic and it was perhaps the biggest error of judgement made by Tony Blair. The burden of proof is required - 'beyond reasonable doubt' and often by a large majority of jurors in serious cases - was never going to achieved. Throughout the run-up to the war, the phrase 'smoking gun' was deployed to give the whole episode a flavour of a 1950s crime movie.

In this pseudo-trial there was no recognition of a civil defence, no rights of disclosure and when the cross examination started to reveal flaws in the prosecution's case, there was always enough wriggle room for the Minister to beat a retreat to using the 'intelligence cannot be made public' excuse.

In this trial, the jurors were simply asked to trust their leaders and policy makers; and this at a time when those in public office are the second least trusted profession after Journalists. But this is not how trials operate. Jurors do not convict because they 'trusted' the prosecutor. They convict if the prosecutor's case is solid, defensible and not undermined by a defence.

In the US, perhaps due to his stunted intellect or lack of legal training (a la Tony Blair), George W Bush kept his options more open. He often blurred his Administration's political objectives with the legal case by citing UN Security Council Resolutions as the primary justification but resorting to his 'War on Terror' and finally humanitarian relief when the going got tough and the questioning required more than a one word answers.

But the trial was never given time to finish. By the time the prosecution had finished making their case and the defence were left to make theirs, an unstoppable military juggernaut was rolling through the deserts of the Gulf. And a further excuse emerged: 'we cannot back down know, we will loose credibility'. It was a 'slam-dunk', to use an expression borrowed from the House of Representatives.

Furthermore, the defence's case was not made by some official Iraqi defence team but by a probing media and a duty bound 'Her Majesty's Opposition' (well, the Liberal Democrats, anyway.), sworn enemies of Tony Blair. It was also made after the sentence had been carried out, extra-judicially, by the heavy mob out the back.

But in the end political logic saw to it that the war was inevitable, despite the regular claims by Ministers on BBC Radio 4's Today Programme that it was not. One: Blair believed that Saddam had weapons of mass destruction (or at least no inquiry has revealed a contrary view). Two: Blair also believed that whatever the UN Security Council resolved, Britain retained the right to act unilaterally as a sovereign nation. Ipso facto, the war was inevitable.

And so we are left with the one simple question: why did Blair choose to justify the war in legal terms? It was this decision alone that has delivered us to this impasse. Was it his lawyer background or the unease in his own party about aligning so closely with a neo-Conservative administration in Washington? Maybe it was the influence of his wife, herself a highly paid (and respected) Barrister?

It doesn't matter whether Blair truly believed that Saddam had a WMD programme or not. In fact he probably did believe it and Andrew Gilligan was sensationalising is his assertion that the Government 'probably knew [the 45 minute claim] was wrong'. But in attempting to 'prove beyond reasonable doubt' that Saddam was up to no good was never going to wash. Throughout, Blair and his Ministers stuck resolutely to their guns in justifying the war on legal grounds, despite unrelenting pressure from John Humphries and James Naughtie. And intense cross-examination no doubt revealed that there was no clear-cut case. Ministers resigned in disgust, but still the Government held the line. The Today Programme became compulsive listening at the time. It was like two heavyweight prize-fighters slugging it out, already blinded by swollen bruises. In retrospect, it was obvious that someone was going to die before the end.

All we can hope for in the future is that the Bush-Blair-Howard triumvirate has been so badly burned by this episode that pre-emption is unlikely to resurface in a similar guise again. Crack teams of commandos are unlikely to go charging in at the behest of their political leaders when they envision a Pre-Crime being committed, despite the bellicose rhetoric from neo-Conservatives. Well, either that, or they all get voted out in 2004.

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