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Bush Considered Flying US Spy Planes Painted With UN Colors Over Iraq In 2003 to Provoke War

New evidence has emerged that President Bush and British Prime Minister Tony Blair agreed in January 2003 to attack Iraq regardless of whether diplomatic efforts succeeded. The revelation comes in a newly updated version of the book “Lawless World” by British international law professor Philippe Sands. According to the book, Blair offered Bush his full support of the war during a meeting at the White House in January 2003. Sands says his account is based on a summary of the meeting prepared by one of the participants. According to the book, Bush is recorded as saying that "the start date for the military campaign was now penciled in for 10 March. That was when the bombing would begin. The military timetable meant that an early resolution was needed."

Bush also reportedly said the "diplomatic strategy had to be arranged around the military planning". In addition the book reveals President Bush told Blair that the United Stated was considering flying U2 spy planes disguised as United Nations planes over Iraq in an attempt to provoke Saddam Hussein. If Iraq fired on the planes, it would help justify a U.S.-led invasion.

• Philippe Sands, the author of “Lawless World.” He is a professor of international law at University College London.

AMY GOODMAN: We are joined now in London by Philippe Sands, the author of Lawless World. He is a professor of international law at University College London. We welcome you to Democracy Now!

PHILIPPE SANDS: Good morning. Very nice to be with you.

AMY GOODMAN: It’s good to have you with us. Well, why don't you talk about this, what you call the White House memo?

PHILIPPE SANDS: The White House memo was a document that I’ve added into the latest edition in the U.K., and it describes a meeting well known to have been held between President Bush and Prime Minister Tony Blair on the 31st of January, 2003, just five days before Colin Powell gave his famous presentation to the Security Council. What's so striking about the material, which has not been challenged as not being authentic, is that it confirms the absence of evidence of weapons of mass destruction in Iraq. Why would the British prime minister and the American president be talking about the possibility of provoking a material breach if they had clear and compelling evidence? But more importantly, it also confirms, as some have thought and some have said, that the road to a second resolution was a sham. The decision had already been taken that already, by the end of January, a start date for the war was penciled in and the decision was set in stone and that both Bush and Blair had agreed.

AMY GOODMAN: Now, Philippe Sands, I want you to say again what this plan was. What was it that President Bush proposed?

PHILIPPE SANDS: Well, according to the minutes of the meeting, which is prepared by one of the participants, at one point President Bush tells the British prime minister that he has other things in mind, and what he suggests is the possibility that the United States would take some of its own spy planes, paint them in United Nations colors, put them in the air above Iraq, provoke Saddam to attack them, and when Saddam did attack them, he would then be in material breach, and that would justify the use of force for violating earlier Security Council resolutions. The simple point is: Why do you do that if you have hard evidence of weapons of mass destruction?

AMY GOODMAN: Has the U.N. responded?

PHILIPPE SANDS: The U.N. hasn't responded to any of it. The White House responded, and Downing Street have responded. Downing Street has said they don’t do book reviews and that they -- there was no decision to start the war until the 18th of March, 2003. But there’s no inconsistency between the two. The 18th of March date in the U.K. was the date when Parliament voted for war. It’s pretty clear to me, as people have long suspected, that the British prime minister himself had long before decided to join President Bush in the road to war in Iraq.

AMY GOODMAN: You called this the White House memo. Do you want to say which participant revealed it to you?

PHILIPPE SANDS: I'm not able at this point to go beyond what is in the book. I have referred to it as the White House memo, because it refers to a meeting held in the White House, that's not in dispute. Interestingly, President Bush, himself, in his conversations with Bob Woodward in another book, Plan of Attack, refers to the 31st of January meeting as the famous second resolution meeting. So, it’s clear that something important happened. I think that's the moment which the American president told his British ally he was going ahead irrespective of the U.N. route.

AMY GOODMAN: Now, you also revealed the first Downing Street memo. Can you explain what that is, and for American listeners and viewers, why these are referred to as Downing Street memos?

PHILIPPE SANDS: The Downing Street memos refers to a much earlier text from July 2002, so about nine months earlier, and it refers to a meeting held by parts of the British Cabinet who were discussing the British government's strategy for dealing with the Iraq situation. Piecing the whole thing together, what becomes very clear is this: in March and April 2002, President Bush and Prime Minister Tony Blair meet at Camp Crawford, and they agree on a strategy, which is to go the weapons of mass destruction route. That's revealed in the Downing Street memo. They then go the U.N. Security Council route. They get a first resolution. It doesn’t authorize the use of force. They have the prove that Saddam is in materiel breach. They are unable do that, because Mr. Blix and Mr. El-Baradei don't deliver the goods. And they are then left really flailing around, trying to find other ways to justify a use of force that was, in my view, wholly illegal.

AMY GOODMAN: We are talking to Philippe Sands. He is professor of international law at University College London and author of the book Lawless World: America in the Making and Breaking of Global Rules, From F.D.R.'s Atlantic Charter to George W. Bush's Illegal War. In the paperback edition that has just recently come out is where you reveal the White House memo about President Bush wanting to put U.N. markings on a U.S. spy plane to provoke Saddam Hussein. Let's talk about legality of war. You are an international law professor. Are we seeing the use of international law, the discussions about the violation of it, more than we have ever seen before?

PHILIPPE SANDS: We are, and it’s a result, if one is clear about it, of a very positive effort made by the United States dating back to the 1940s. My book starts in August 1941 at a meeting between Roosevelt and Churchill off the coast of Newfoundland, when Churchill and Roosevelt agreed they were going to put in place a new world order, a world order based on rules. In the eight years that followed, they put in place together with other countries the modern system of international laws: the Universal Declaration of Human Rights, the Geneva Conventions on the Treatment of Prisoners of War, the Nuremberg Statute, the General Agreement on Tariffs and Trade, the Genocide Convention, all of the instruments that we have come to know in the modern system; the basic principle being the dignity of human individuals would be protected, the use of force would essentially be outlawed except in special circumstances, self-defense, for example. It’s a U.S. system, supported by the British, intended to promote American values, American constitutional values.

Fast forward 60 years, and the administration that now holds office sees these rules, which for several administrations were seen as promoting American opportunities, promoting American values, as imposing constraints. And what we saw after 9/11 was the decision, effectively, to cast aside the rules, to create the legal black hole at Guantanamo, to unbound the U.S. president to allow him to authorize interrogation, including the use of torture, and, of course, to prosecute a war in Iraq that did not meet the very rules the United States put in place. So that's a fundamental challenge to the international rule.

AMY GOODMAN: I wanted to talk to you, Philippe Sands, about a case you were very involved with, and that's the case of Augusto Pinochet, the Chilean dictator who was arrested here in England on -- what was it? -- October 16, 1998. Can you talk about on what grounds he was arrested, how he was held here, and how significant this is for what's happening in the world today?

PHILIPPE SANDS: Yeah, it’s very significant for what's happening in the world today, and I’ll explain why. Senator Pinochet was arrested on allegations of torture, disappearance of people, murder. At the end of the day, it boiled down to issues of torture. The allegation was that his government had exercised torture after he came into office on another September 11, 1973, over a period of 18 or so years. When he arrived in London in the autumn of 1998, he was slapped with an arrest warrant, alleging, amongst other things, torture. And the basis for the arrest warrant, which came, not from the United Kingdom, but from a Spanish prosecutor, was a 1984 convention prohibiting torture.

And the significance of the convention, to which the United States is a party, Chile is a party, Spain is party, the U.K. is a party, is that it prohibits torture anywhere in the world and it gives any country in the world the right to exercise jurisdiction over torture. So, if someone authorizes torture in the United States, if torture takes place in Afghanistan or in Iraq, that person in the United States is liable to the jurisdiction of any court in the world. You can see straight away the significance of that decision.

The decision goes even further, because what it says is, even if you were a head of state, you are not entitled to claim immunity from the jurisdiction. You can’t say, “Oh, well, I was a head of state at the time it happened, you can’t bring me before your courts.” Senator Pinochet ran that argument, and he lost the argument. What that means in principle, and, of course, everything turns on the facts, is that in relation to those in the United States who may have signed off on the authorization of torture, from lawyers like John Yoo right up to Secretary Rumsfeld, perhaps even up to the Vice President and perhaps even up to the President of the United States, once they are out of office, they will not be able to claim immunity if there is hard evidence of involvement in complicity in torture. That's a very significant implication.

AMY GOODMAN: It’s interesting. Isn't the Attorney General of the United States, Alberto Gonzales, in London now?

PHILIPPE SANDS: The Attorney General of the United States, Alberto Gonzales, has been talking this morning at the International Institute of Strategic Studies. I spoke there a week ago. I was a sort of aperitif, a warm-up act for what he had to say. Needless to say, my message was rather different from his. But it’s the same Mr. Gonzales who, of course, describes the Geneva Conventions which provide vital treatment, vital protections for prisons of war, including American prisoners of war, as quaint, as obsolete, as no longer applicable in relation to the Taliban and al-Qaeda individuals. And it’s the same Mr. Gonzales who, of course, contributed to the signing off of memoranda authorizing what in Britain is considered to be torture.

AMY GOODMAN: Now, this may sound like a stupid question, but it’s always said. Once a person leaves office, because when they are in office, they are guaranteed immunity; why are they guaranteed immunity when they’re in office?

PHILIPPE SANDS: They are guaranteed immunity whilst they're in office essentially to allow states to continue to interact. So states have decided it would be inappropriate for a situation, in which the U.S. president could not travel to Spain, for example, with a threat of an arrest warrant being thrown on him. The logic for that disappears once the individual is out of office, because that person no longer exercises governmental functions.

AMY GOODMAN: Of course, countries could say you can't come as head of state to our country. Didn't they do that with Kurt Waldheim, when it was discovered his involvement in the Holocaust? Yet he was president of Austria; he wasn't allowed into the United States.

PHILIPPE SANDS: Countries can do that. I suspect we are a long way from that in relation to either the British prime minister or the American president. And I want to make clear that all of this, of course, turns on the facts. We’re still at the situation where most of the facts are yet to emerge, but the suspicion that many of us have is that once Mr. Blair and President Bush leave office, a great deal more material is going to emerge.