Tuesday, 23 June 2009

Iraq Inquiry - Remit and Format

A lot has happened over the last few days that indicates how the inquiry may be shaping up. We have a Parliamentary debate tomorrow which may well provide the catalyst for the final crystallisation of the inquiry remit and format.

As we know, both Blair and Campbell have tried to wriggle out of public accountability by lobbying for the inquiry to be held in private, as Brown initially stated. As we know, there has been an enormous backlash from generals and air marshals, the lords Butler and Hutton of the eponymous inquiries, politicians of all parties (including from the Labour benches) as well as the public at large.

Brown has backed down (although he should not be criticised for backing down as this is a welcome development) and the chair of the inquiry, Sir John Chilcot, has indicated that the majority of the inquiry will be public and that Blair will be expected to give evidence in public. Chilcot has also indicated that he will seek military expertise as part of the inquiry and that he will consult with the leaders of the opposition parties – David Cameron and Nick Clegg.

So far, so good. The importance of this inquiry cannot be overstated. There is an element of self-interest as well: Labour – and this current government – will forever be tarnished by the stain of Iraq unless its legacy is a full and transparent public inquiry which leaves no stone unturned. I personally would be deeply grateful to Brown if this was his legacy, which could heal many divisions and restore the reputation of his party and government.

However, more work and more pressure is required. A public inquiry is not necessarily a robust inquiry. It depends on the remit and the format.

The remit as it stands does not cover a long enough period: the inquiry needs to consider the period as far back as the first Gulf War of 1990 and the ceasefire resolution, as well as Op Desert Fox of 1998. The entire events of this period do not need detailed consideration but the inquiry would need to look specifically at weapons inspection, sanction monitoring and intelligence assessments.

The format must be inquisitorial with cross-examination and legal counsel for witnesses. Hutton is a good model for an inquiry, but the death of Dr Kelly was far more clear-cut with counsel for the government and counsel for the Kelly family. An Iraq inquiry would be more difficult to organise along these lines but not impossible. Two rounds of hearings could take place, the first to establish a narrative with points of contention and dispute and the second to allow cross-examination on these points of contention, probably with a case “for” the government and a case “against” the government with multiple representations made through a single barrister. I’m not a lawyer but I’ve been through inquiries and hearings and it is perfectly possible to structure an inquiry with informal hearing sessions (the first stage) and formal inquiry sessions under oath with counsel (the second stage). There’s the issue of whether evidence is under oath, but as this is a non-judicial inquiry that is not likely. However, I suppose a judicial inquiry could follow under certain circumstances. Nevertheless, the format of this inquiry must be robust – presumably Blair and Campbell are hoping to be questioned by Sir David Frost or Andrew Marr.

There would be very little dispute over closed sessions where this was required for critical issues of operational effectiveness or classified intelligence. However, I sense a possible government get-out clause. Most intelligence relating to Iraq from 2002 and 2003 would be UK-US Eyes Only, normally secret or top secret with additional restrictive caveats. There are protocols for sharing of intelligence between the UK and US as well as protocols for critically sensitive intelligence. The normal protocol is that shared intelligence will not be disclosed without the permission of the originator, and I do not believe that the US will allow disclosure of supplied intelligence even to an inquiry with evidence sessions behind closed doors. It is worth checking Butler, to see what was released to that inquiry, but the pattern of US co-operation with inquiries and inquests has been lamentable. It is tempting to believe that the situation may be slightly different now – seven years after the war and with an Obama administration – but I doubt it, as the culture of government secrecy always remains. So it may be very difficult to scrutinise intelligence where release is not authorised. However, it will be possible to hear evidence from intelligence and military personnel who played a role in such matter, even if the primary material is not released. These sessions may well need to be behind closed doors, but a case needs to be made to justify it. Also, by reviewing the Hutton and Butler material, some time can be saved – although there have been subsequent leaks and disclosures since these two inquiries, and these leaks are likely to continue. Another reason for closing the doors will be on issues of military operational effectiveness and personnel security – special forces personnel, details of precise equipment capabilities and operational tactics. I think these would be very limited to a few specific situations and scenarios, mainly relating to special forces operations and tactics and precise details of equipment capabilities and limitations. These should be very limited. Nevertheless, it is vital to get the issue out on the table at the start to avoid being bounced into a cover-up when it is too late.

I hope that the debate tomorrow will cover all these issues. I think – eventually – we will get the inquiry that is needed and there is the will on all sides to see it through, despite vested interests. Thankfully those vested interests are largely without power or influence and a whitewash is hopefully beyond their grasp.

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