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Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Tuesday, September 30, 2003

Hutton: Dingemans closing statement and the 45 minute claim

Now that the torrent of Hutton stuff has at last dried up - all bar Sir Kevin Tebbit on cross, and the documentary evidence submitted late, which has yet to hit the Hutton site - welcome time for reflection.

For one thing, over Inquiry Counsel James Dingemans QC's closing statement last Thursday (from 146:6).

First impression is that, in emphasis, it appears rather more concerted with the treatment of Kelly question than the September dossier: it is topped and tailed with references to coronial matters; the production of the dossier takes from 149:12 to 155:12, when he picks up with the Gilligan/Kelly meeting of May 22 and its sequelae: BBC v Campbell, the FAC, Kelly's June 30 letter volunteering his name, and so forth - but all (and for good reason) from viewpoint looking directly down on Kelly. He rounds off, at 181:6, with a suitable caution on the need to stick to the terms of reference, and that's it.

He prefaces his dossier passage with the following, rather oddly phrased statement:
there are two phrases which have been
8 used throughout this Inquiry which are certainly capable
9 of more than one interpretation. One is "weapons of
10 mass destruction", and the other is "sexing up".

Brian Jones, from memory, made quite a point about the (in his view) loose way that WMD was used. But Hutton's is scarcely a semantic inquiry.

Dingemans skips through the dossier chronology touching only on a few elements. He frames the question, whether or not a case was being made by the dossier (ie, presumably, a case for war on behalf of HMG).

He quotes John Scarlett (Chairman of the JIC) at 150:32:
Mr Scarlett's evidence is that he
22 was happy with all of the proposed changes. His
23 evidence is that there was no case being made or
24 presented in the dossier.

Then continues:
25 Mr Campbell, in evidence earlier this week, when

1 asked what case was being made, said:
2 "The explanation as to why the Prime Minister and
3 the Government were growing more and more concerned
4 about the issue of Iraqi WMD."

A compare and contrast there, one surmises. He cites
[t]he e-mail of 11th September 2003 at
8 CAB/23/15 [as] record[ing] that the dossier was wanted to be as
9 strong as possible...
and an
e-mail of 10th September at CAB/3/21, in which
12 Dr Kelly's comments on growth media were communicated,
13 concluded with these words:
14 "The existing wording is not wrong -- but it has
15 a lot of spin on it!"

And refers to complaints by DIS members, including Brian Jones, on the dossier.

At 154:14, he makes reference to the
the clear
15 evidence that at JIC level Mr Scarlett and the other
16 members of the Joint Intelligence Committee gave final
17 assent, by silence procedures...

I'm not clear he is criticising the use of these silence procedures. For instance, he does not, so far as I can see, refer to Jonathan Powell's September 19 email (CAB/11/103), timed at 1545, 45 minutes after the supposed cut-off under these procedures, which suggested a passage on WMD be redrafted [1].

Then, at 155:1, he pursues his point:
1 Perhaps part of the problem, that a case was being
2 made in the dossier, whether or not Mr Scarlett was
3 aware of it and Dame Pauline Neville-Jones a former
4 Chairman of the Joint Intelligence Committee and
5 a current governor of the BBC was recorded by the
6 Foreign Affairs Committee as saying this, is that there
7 was a fine line between showing the evidence and making
8 a case.

(Scarlett, like PNJ, has a foot in two camps - in his case, as an ex-SIS (MI6) man and sitting in the Cabinet Office as Chairman of the JIC.)

Dingemans completes his point on making a case:
9 Mr Sumption says it is constitutionally appropriate
10 for Mr Powell and Mr Campbell to be involved with the
11 drafting of the dossier. But if the gist of the
12 comments made was to make a case, that may or may not,
13 it is a matter for your Lordship, be the other side of
14 the line. Even a judge, even your Lordship, hearing one
15 side of an argument, may get it wrong. A matter for
16 your Lordship to consider will be whether Mr Scarlett
17 was hearing from Downing Street only one side of the
18 argument.

As I've said here more than once, the vital thing to recognise that, in demarcating the political/administrative from the intelligence, the JIC (and Scarlett) are at least half in the political sphere. The JIC is not the UKIC at prayer! Scarlett is the liaison man between the spooks and HMG, and the JIC is a liaison committee (why else does it have the main departments of state, and thus customers of UKIC's product, sitting on it?).

(A comparison that some more expert than I am might wish to pursue is of Scarlett with the Government Chief Whip: he has, I think, a similar function, representing the views of backbench MPs to the prime minister, and disseminating the wishes - or instructions - of the PM to his troops.)

Apart from any considerations of being Alastair Campbell's mate, Scarlett is tainted by politics - and not by accident or fault on his part: that's his job!

Dingemans then picks up the point, at 155:19, that the misunderstanding of the press over the 45 minute claim - the wrong assumption that it applied to WMD delivered by ballistic missiles, rather than WMD used in battlefield weapons - had been allowed by HMG to remain uncorrected. He concludes the dossier passage of his speech:
7 It might be thought unfortunate that if Government
8 communications experts were involved, because of the
9 lack of experience of JIC members at public
10 presentation, such confusion was allowed to occur.
11 The BBC has made the point that the record was not
12 corrected...
and moves onto Kelly/Gilligan.

Nothing there about the quality of the 45 minute intelligence; or the methods of analysis; or the peculiar UK system of providing HMG with a single view of intelligence, rather than the marketplace of ideas that rules in the US.

His peroration contains something of a warning to those expecting too much:
15 The aim of the Inquiry is to urgently conduct an
16 investigation into the circumstances surrounding the
17 death of Dr Kelly.
18 The material that has been adduced has inevitably
19 raised issues beyond your terms of reference.
20 Your Lordship is restricted to the terms of reference.
21 As a matter of constitutional law and practice there are
22 other institutions who have powers to examine matters
23 beyond your Lordship's terms of reference.

Now, since Dingemans acts hand in glove with Hutton, one can't really take this as his admonition to the judge! An assurance, perhaps, to Teflon Tone that, despite appearances to the contrary, his Lordship is going - as it were - to decide the case on the narrowest grounds available? (No Roger Taney he! The free-ranging Dred Scott Will Rogers putting the world to rights is - I infer from his interventions - no part of Lord Hutton's character or intentions.)

There certainly seems to be some rowing back from the Fifteen Points in the statement Dingemans made at the start of the cross-examination phase of the enquiry [2]. The fact that no evidence has been led to get behind the 45 minute claim (was, as suspected, the immediate source one of Ahmed Chalabi's hacks? how could the inconsistencies in the expression of the 45 minute claim [3] arise if the ultimate source knew what he was talking about, and was accurately reported? Etc, etc...) or the reliability of UK intelligence analysis in general would tend to support the argument that Hutton will go narrow.

We'll see.

  1. My piece on September 24 on John Scarlett's cross-examination has him being questioned on the point.

  2. My piece on September 15.

  3. My piece on September 2.

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