Last week, a legal thunderbolt struck at the heart of the grubby conspiracy that led the United States and Britain into an illegal war of aggression against Iraq. But this searing blow didn't fall in Washington, where a media frenzy raged over a White House indictment, but in southern England, in a military courtroom, where a lone soldier stood against the full force of the great war-crime enterprise, armed only with a single, rusty, obsolete weapon: the law.
While Potomac courtiers were reading the entrails of the cooked goose of Scooter Libby — the first Bushist honcho caught in the slow-grinding gears of special prosecutor Patrick Fitzgerald's investigation — in Wiltshire, Flight Lieutenant Malcolm Kendall-Smith faced a court martial after declaring that the Iraq war was illegal and refusing to return for his third tour of duty there, The Guardian reports.
He has been charged with four counts of "disobeying a lawful command." But Kendall-Smith, a decorated medical officer in the Royal Air Force, says that his study of the recently revealed evidence about the lies, distortions and manipulations used to justify the invasion has convinced him that both the war and the occupation are "manifestly illegal." Thus any order arising from this criminal action is itself an "unlawful command," The Sunday Times reports. In fact, the RAF's own manual of law compels him to refuse such illegal orders, Kendall-Smith insists.
The flight lieutenant is no ordinary war protester, and no shirker of combat — unlike, say, the pair of prissy cowards at the head of the U.S.-British "coalition." Kendall-Smith, who has dual New Zealand-British citizenship — and a pair of university degrees in medicine and Kantian moral philosophy — has served three tours at the front in Afghanistan and Iraq. He is not claiming any conscientious objections against war in general, nor do religious scruples play any part in his stance. It is based solely on the law.
Central to his case are the sinister backroom legal dealings between London and Washington in the days before the invasion. Less than two weeks before the initial "shock and awe" bombings began slaughtering civilians across Iraq, Lord Goldsmith, the British attorney general, gave Prime Minister Tony Blair a detailed briefing full of doubts and equivocations about the legality of the coming war, adding that Britain's participation in an attack unsanctioned by the United Nations would "likely" lead to "close scrutiny" by the International Criminal Court for potential war crimes charges, The Observer reports.
But Blair and Goldsmith withheld this report from Parliament, the Cabinet and British military brass, who were demanding a clear-cut legal sanction for the impending action. Then, just three days before the bloodletting began, Goldsmith suddenly produced another paper, this time for public consumption: a brief, clear, unequivocal statement that the invasion would be legal. This statement was almost certainly crafted in Washington, where Goldsmith had recently been "tutored" by the Bush gang's consiglieres, including the legal advisers to Colin Powell, Donald Rumsfeld and Condoleezza Rice.
Leading this pack of war-baying legal beagles was George W. Bush's top counsel, Alberto Gonzales, who had overseen the White House's own efforts to weasel out of potential war crimes charges by declaring — without any basis in Anglo-American jurisprudence or the U.S. Constitution — that Bush was not bound by any law whatsoever in any military action he undertook: a blank check for aggression, murder and torture that Bush has gleefully cashed over and over. Alberto and the boys leaned hard on Goldsmith, who finally caved in and replicated the Americans' contorted and specious legal arguments for launching the attack.
Of course, Kendall-Smith knew none of this during his first two tours in Iraq: Goldsmith's Bush-induced backflip was only divulged in April 2005. Nor did he know then of the "Downing Street Memos," the "smoking gun" minutes that record Blair's inner circle dutifully lining up behind Bush's hell-bent drive for war — as far back as 2002 — and their conspiracy with the Bush gang to manipulate their countries into war. The memos, which emerged in May 2005 and have never been denied or repudiated by the British government, show Blair's slavish acquiescence in Bush's criminal scheme to "fix the facts and the intelligence around the policy" of unprovoked military aggression. Confronted with this new evidence — and revelations about the mountain of doubts expressed by U.S. intelligence before the invasion but deliberately ignored by the Bushist war party — Kendall-Smith took the only honorable course for a soldier who has been duped into serving an evil cause.
The moral rigor of his defiance has sent tremors through the British military establishment, already shaken by the strange, unexplained shooting deaths of two military inspectors investigating atrocity allegations in Iraq, The Guardian reports. British brass are panicky about the Goldsmith revelations; indeed, the leader of the British invasion force, Admiral Michael Boyce, said that he now believed his country's military did not have "the legal cover necessary to avoid prosecution for war crimes," The Observer reports. Boyce added that if he and his officers were eventually put on trial for waging aggressive war, he'd make sure that Blair and Goldsmith were in the dock beside them.
Bush, Blair and their minions have committed a monstrous crime, and they know it — hence all the convolutions, before the war and after, to inoculate themselves from prosecution. But with Kendall-Smith and Fitzgerald, the long-moribund figure of the law is re-awakening. It's weak, it's bleary, it certainly might fail. But now the conspirators will have to live cowering in its shadow for the rest of their days.