There are times when government lawyers (including military legal advisors) are faced with a stark choice. Their political masters (or their superiors in the military) are clearly set on pursing a certain course of action that seems pretty patently illegal. The stakes are exceptionally high, including very possibly in lives lost. The pressure of raw power is overwhelming. Should the lawyer become (or continue being) an apologist for that raw power, crafting some kind legalistic rationale to justify a decision already made? Or should they just say no, this is illegal and you can’t do it?
Most government lawyers are not routinely, or ever, faced with this kind of choice. To be sure, most government lawyering involves decisions on (il)legality, or plausible legality and legal risk, and government lawyers will frequently say no, this can’t be done – but in a great majority of cases the stakes will be fairly low, and provision of advice will simply be part of the bureaucratic machine doing its work. Yes, there will be friction, but nothing existential. Frequently, the government lawyer will find a way in which whatever is proposed can be done (arguably? plausibly?) lawfully.
Yet, there will be those cases in which the stakes are exceptionally high – the paradigmatic example, but not the only one, being decisions about going to war, or how the war is conducted. And here, for a small subset of government lawyers, the dilemma will arise.
To be clear, this stark dilemma does not really arise for the great many able lawyers working for authoritarian governments (which of course exist on a pretty large spectrum). No lawyer in the Russian Ministry of Foreign Affairs would ever even dream of telling Putin that a particular course of action – especially one involving a use of force – is illegal. It’s inconceivable, almost as inconceivable as resigning in protest. This is just how things are in many, if not most, states in the world. Speaking truth to power (or at least, to the power of one’s own state) is simply not in the job description of a government lawyer in an authoritarian state, and no one expects otherwise.
Yet, in democratic states, in which a culture of commitment to the rule of law has been built up gradually, the dilemma can arise. Torn between apology and utopia, between being criticized for manufacturing implausible legal justifications and criticized (and possibly ignored) for being naive and failing to understand how the world really works, what should the lawyers do? Their superiors know that the law is often uncertain and can be stretched; they also know that their lawyers have frequently helped them to do any necessary stretching. Should now, however, these lawyers put their foot down and say no, on this we cannot bend? And if the powers that be reject their advice, should they continue working for the government, or should they resign?
Some lawyers may find it relatively easy to say no, and if need be resign – a decision made, for instance, by many career federal prosecutors in the United States in recent months (see, e.g., here). They will find other jobs – these jobs exist and are available to them – and reputationally they suffer no costs, on the contrary. For others the decision will be less easy. Military lawyers may not even have the option of resigning, at least not immediately. Some may have become the lawyerly equivalent of a slowly boiled frog, so accustomed to justifying, normalizing, stretching and manufacturing grey areas and uncertainties, that saying no when saying no matters becomes exceptionally difficult, even unthinkable. The braised lawyer is no longer capable of bravery. It’s particularly ironic, and troubling, when that happens to military lawyers, for whom bravery should be at the core of their ethos.
Which is why, I think, we need to periodically remind ourselves of high-stakes examples when government lawyers, in the face of enormous political pressure, nonetheless said no (or at least some of them did so). This is especially important today, when so many democracies are unraveling and are suffering internally from rule-of-law-crises. Today, when a US president can threaten a whole civilization with destruction, just like that. Today, when heavy explosive weapons are being used in urban areas without much apparent regard for civilians.
The example that always comes to my mind is that of the career UK Foreign Office lawyers who said no to the 2003 invasion of Iraq, and of the not so courageous Attorney General who said yes. This is not a saga that I wish to rehearse in any detail here, but some background materials are cited below for readers who would wish to consult them. All I want to do now is recall the testimony of two of these lawyers, Sir Michael Wood and Elizabeth Wilmshurst (the former the Foreign Office legal adviser, the latter his deputy). Their testimony took place before the Iraq (Chilcot) Inquiry, on 26 January 2010.
In the middle of Sir Michael’s testimony, several previously confidential documents were unclassified. This included a short memo that he wrote to the then Foreign Secretary, Jack Straw, in which he followed up on his previous advice to express his hope that ‘there is no doubt in anyone’s mind that without a further decision of the [Security] Council, and absent extraordinary circumstances (of which at present there is no sign), the United Kingdom cannot lawfully use force against Iraq […] To use force without Security Council authority would amount to the crime of aggression.’ Just look at how Sir Michael’s advice was framed: if you do this, you will be committing an international crime. This was the advice that Straw would later note, but reject.
Elizabeth Wilmshurst not only shared Sir Michael’s views on the illegality of a use of force against Iraq, but had also resigned when their advice was not followed, after the Attorney General (who had previously shared their views) changed his mind and cleared the invasion. (Her letter of resignation is here). In a BBC report from the day, her testimony before the Iraq Inquiry was described as follows:
This was the most dramatic day of evidence so far. Elizabeth Wilmshurst’s appearance was always guaranteed to draw plenty of attention.
The former Foreign Office legal adviser had not previously spoken publicly about her decision to resign over the Iraq war.
When she finished giving evidence and the cameras had been switched off, members of the public in the hearing room burst into spontaneous applause.
Ms Wilmshurst appeared composed and precise. During the discussion about Jack Straw’s rejection of Foreign Office legal advice in 2003, she was asked whether it had made a difference that Mr Straw was a qualified lawyer. “He’s not an international lawyer,” she replied tersely.
I used to teach the Iraq war to my students pretty regularly – these days I tend to do that only fleetingly, because there is only so much time, and so many other conflicts have happened since. But I always wanted to discuss the provision of government legal advice with them. In doing so I was always irritated by the fact that, because of the overhaul of the BBC website and the archiving of the webpage of the Iraq Inquiry, there appeared to be no video online of the testimony of the two Foreign Office lawyers before the Inquiry.
Thanks to the help of a friend at the BBC (while thanks are also due to the BBC for giving me permission to do this), this is now a small problem that we could partly fix. Here’s a short, four-minute video clip with some of the highlights of the testimony.
I will leave that here without any further comment. Here are some background materials:
Report of the UK Iraq Inquiry, Section 5, pp. 64-75 (A disagreement between Mr Straw and Mr Wood); pp. 123-131 (Lord Goldsmith’s change of view)
Written and oral evidence from the hearing of the Iraq Inquiry on 26 January 2010, including transcripts, witness statements and declassified documents
A symposium on the Inquiry in the British Yearbook of International Law, including a piece with Michael Wood’s personal reflections and an article on media reporting on the war, legal advice and the Inquiry by Charlotte Peevers