5 | Advice on the legal basis for military action, November 2002 to March 2003

426. Lord Goldsmith met Mr John Bellinger III (the NSC Legal Adviser), Judge Alberto

Gonzales (Counsel to the President), Dr Rice, Mr William Taft IV (Legal Adviser at the

State Department), Mr Marc Grossman (Under Secretary of State for Political Affairs)

and Mr William Haynes II (General Counsel at the DoD).166

427. Ms Adams’ record of the discussions set out the questions which had been

addressed and the US responses, including:

• Resolution 1441 contained two determinations of material breach (in OPs 1

and 4) and the US view was that the conditions of OP4 had already been met.

There was, therefore, a Security Council determination of material breach by

Iraq, meaning that the conditions for the cease-fire were no longer in place.

• The use of the term “material breach” had been avoided in 1998. Its use in

resolution 1441 strengthened the argument that the Council intended to revive

resolution 678.

• The use of the term “co-operate fully” had been retained in the resolution

in order to ensure that any instances of non-co-operation would be material.

In the US view, “any” Iraqi non-compliance was sufficient to constitute a material

breach.

• The US recognised the UK’s concerns about de minimis breaches (eg an hour’s

delay in getting access to a site), but considered that the situation was “well

past” that point.

• The inspectors were “reporters not assessors”.

• The US would not have accepted a resolution implying that a further decision

was required.

• OP12 was not a “purely procedural requirement”. The members of the Council

were “under a good faith obligation to participate in the further consideration of

the matter within the meaning of OP12”.

• The US had satisfied that requirement by the actions they had already taken, for

example Secretary Powell’s report to the Council on 5 February.167

428. Mr Brenton commented that there had been “no problem lining up a good range

of senior interlocutors” for Lord Goldsmith to meet, “underlining how important the

Administration consider it to help the UK to be in a position to join them in action

against Iraq”.168

166 Letter Brenton to Goldsmith, 11 February 2003, ‘Visit to Washington, January [sic] 10; Iraq’.

167 Letter Adams to McDonald, 14 February 2003, ‘Attorney General’s Visit to Washington, 10 January [sic]:

Iraq’ attaching Minute Adams to Attorney General, 14 February 2003, ‘US Responses to Questions on

Resolution 1441’.

168 Letter Brenton to Goldsmith, 11 February 2003, ‘Visit to Washington, January [sic] 10; Iraq’.

77