9th Circuit Opinion Released

The Ninth Circuit has affirmed the immunity given to high-ranking Bush-era officials in Saleh v. Bush,  and has dismissed Ms. Saleh’s claims of aggression against George W. Bush and others for their alleged planning and commission of the crime of aggression against Iraq.

The Ninth Circuit held that the Westfall Act, a federal law that provides domestic immunity to government officials who commit alleged wrongdoing, is broad enough to cover acts that would amount to aggression under international law.

According to the Ninth Circuit, a plaintiff seeking to hold high-ranking officials liable for illegal acts under international law must allege something akin to a financial interest in order to litigate against domestic officials. The Ninth Circuit provided the following hypothetical:

A federal official would act out of “personal” motives and not be “actuated . . . by a purpose to serve the master” if, for instance, he used the leverage of his office to benefit a spouse’s business, paying no heed to the resulting damage to the public welfare.

The Ninth Circuit also dismissed arguments that the Nuremberg Judgment’s prohibition on domestic immunity to government officials who engage in aggression was binding as a matter of domestic, U.S. law.

You can read the opinion below.

Ninth Circuit Opinion


9th Circuit hears oral argument in Saleh v. Bush, et al.

San Francisco, Calif. — December 12, 2016 was a historic day, marking the first time that a U.S. court heard argument related to the actions of senior Bush-era officials who were responsible for the planning and waging of the Iraq War.

Circuit court judges Andrew Hurwitz and Susan Graber and District Court judge Richard Boulware (sitting by designation on the 9th Circuit), heard argument that the immunity granted to former President George W. Bush and other officials by the federal district court related to their conduct in waging the Iraq War should be overturned. This immunity was provided in December 2014, resulting in the current appeal.

The judges spent most of oral argument focusing on the nature of the domestic immunity, questioning both counsel for the Iraqi plaintiff, Sundus Saleh, as well as counsel for the United States about where immunity ends for government officials.

The judges will issue their opinion as to whether the immunity should be overturned in the coming weeks.


Ninth Circuit confirms judges who will hear argument on legality of Iraq War

San Francisco, Calif. — Today the United States Court of Appeal for the Ninth Circuit confirmed that Circuit Judges Susan Graber and Andrew Hurwitz, as well as District Court Judge Richard Boulware (sitting by designation) will hear oral argument on December 12, 2016, in Saleh v. Bush.

Saleh v. Bush involves claims by an Iraqi woman, Sundus Shaker Saleh,  that former President George W. Bush and other high ranking Bush-era officials broke the law when they planned and waged the Iraq War.

Saleh alleges that former Bush Administration leaders committed the crime of aggression when they planned and executed the Iraq War, a war crime that was called the “supreme international crime” at the Nuremberg Trials in 1946.

Saleh is appealing the immunity provided to the Defendants by the district court in December 2014.

“We are pleased that the Ninth Circuit will hear argument. To my knowledge, this is the first time a court will entertain arguments that the Iraq War was illegal under domestic and international law,” Saleh’s attorney D. Inder Comar, legal director at Comar LLP, said. “This is also the first time since World War II that a court is being asked to scrutinize whether the war itself was an illegal act of aggression — a special war crime that was defined at the Nuremberg Trials in 1946.” Comar is handling Saleh’s case pro bono.

Assuming the oral argument takes place, the argument will be live streamed and recorded on the  Ninth Circuit’s YouTube channel, permitting members of the public to watch the argument. The Court’s calendar commences at 9:00 a.m. Pacific Time on December 12th; the case will likely be heard later in the morning, as it is last on the Court’s calendar.

In addition to former President Bush, Saleh has named former Administration officials Richard Cheney, Colin Powell, Condoleezza Rice, Donald Rumsfeld and Paul Wolfowitz as defendants in the case.

In December 2014, the district court dismissed Saleh’s lawsuit, holding that the defendants were immune from further proceedings because of the federal Westfall Act of 1988 (28 U.S.C. § 2679). The Westfall Act immunizes  former federal officials in civil lawsuits if a court determines that the official was acting pursuant to the legitimate scope of his or her employment.

Saleh disputes the immunity, arguing that the planning and waging of a war of aggression against Iraq fell outside the legitimate scope of employment of former President Bush and the other defendants.

Ninth Circuit denies entry of Chilcot Report in Saleh v. Bush

The Ninth Circuit has refused to review excerpts of the British Chilcot Report in a civil claim filed by an Iraqi woman alleging that high-ranking Bush Administration officials violated law when they invaded Iraq.


Sundus Saleh, an Iraqi woman, claims that former President George W. Bush and other government officials committed the crime of aggression when they launched the Iraq War, an international war crime that was banned at the Nuremberg Trials.

In July of 2016, Ms. Saleh through counsel submitted excerpts from the Chilcot Report to the Ninth Circuit in support of her claim. In addition to the conclusions of the Report, which confirmed that former President Bush was set on regime change in Iraq as early as December 2001, she submitted memos between Bush and former U.K. prime minister Anthony Blair in which they appeared to plan for the invasion soon after the 9/11 attacks. She also submitted the conclusions of U.K. legal experts who issued legal opinions that the Iraq War was illegal and was an act of aggression.

The Ninth Circuit gave no reason for the denial, simply stating in a one sentence order that Saleh’s motion to submit the excerpts was denied.

Because it has denied review of the Chilcot Report, the judges examining the case will not consider the conclusions made by the British government in determining whether former Bush Administration officials should be civilly liable for the planning and execution of the Iraq War, even if such conduct violated laws.

Saleh filed her lawsuit in March 2013 in San Francisco federal court. The court ruled in December 2014 that the defendants in the lawsuit — George W. Bush, Richard Cheney, Donald Rumsfeld, Condoleezza Rice,  Colin Powell and Paul Wolfowitz — were immune from civil proceedings based on the Westfall Act, a federal law which immunizes government officials from lawsuits for conduct taken within the lawful scope of their authority. Saleh appealed the decision in June 2015.

The Ninth Circuit has not indicated when it will issue an order with respect to Saleh’s appeal.

Order denying entry of the Chilcot Report as evidence on appeal.

DOJ Opposes Submission of Chilcot Report to Ninth Circuit

In papers filed Monday, August 1, 2016, the Department of Justice opposed the submission of the Chilcot Report to the United States Court of Appeal for the Ninth Circuit in an ongoing litigation related to the legality of the Iraq War.

The case, Saleh v. Bush, involves claims by an Iraqi single mother and refugee that six high ranking members of the Bush Administration — George W. Bush, Richard Cheney, Colin Powell, Donald Rumsfeld, Condoleezza Rice, and Paul Wolfowitz — waged a war of aggression against Iraq in 2003, and that they should be personally responsible for the consequences of the unlawful invasion.

Defendants Bush and Rumsfeld shake hands

The plaintiff, Sundus Shaker Saleh, alleges that high ranking Bush-Administration officials intentionally misled the American people by making untrue claims that Iraq was in league with Al Qaida and that Iraq possessed weapons of mass destruction. She also alleges that certain of the Defendants, and in particular, Donald Rumsfeld and Paul Wolfowitz, publically supported an invasion as early as 1998 and used 9/11 as an excuse to push for an invasion of Iraq, regardless of the consequences.

Ms. Saleh is relying on the judgments made by the Nuremberg war crimes tribunal convened in 1946, which found German leaders liable for unlawful wars of aggression against neighboring countries. The Nuremberg judgment held that committing a war of aggression was the “supreme international crime.”

The conclusions of the Chilcot Report were submitted to the Ninth Circuit as further evidence of wrongdoing by the six defendants in the case. Ms. Saleh also provided copies of notes and letters from former Prime Minister Tony Blair to George W. Bush included in the Chilcot Report, in which Mr. Blair appeared to commit to the invasion with Mr. Bush as early as October 2001.

In opposing the submission of the Chilcot Report, the Department of Justice claims that the conclusions of the report remain subject to dispute, and that the facts are irrelevant to the issues on appeal.

In December 2014, the Northern District of California dismissed the lawsuit on the grounds that the Defendants were immune from further proceedings under the federal Westfall Act(codified in part at 28 U.S.C. §§ 2671, 2674, 2679).

The Westfall Act provides immunity to former government employees from civil lawsuits if a Court determines that the employees were acting with the lawful scope of their employment.

Ms. Saleh is urging the Ninth Circuit to overturn the finding of immunity made by the District Court and to permit her lawsuit to proceed before the District Court.

Opposition to Motion for Judicial Notice

Chilcot Report Submitted to the Ninth Circuit

We are pleased to announce that excerpts from the Chilcot Report by the British Iraq Inquiry Committee have been submitted to the Ninth Circuit in support of the plaintiff’s case in Saleh v. Bush, et al.

Former British Prime Minister Tony Blair shaking hands with Defendant-Appellee George W. Bush.

What is the current status of the case?

Currently, Saleh v. Bush is on appeal before the Ninth Circuit.  Ms. Saleh’s lawsuit in federal court against US government leaders named as Defendants — George W. Bush, Richard Cheney, Donald Rumsfeld, Colin Powell, Condoleezza Rice and Paul Wolfowitz — was dismissed in December 2014 after the district court immunized the Defendants, ruling they were acting within the lawful scope of their employment when they planned and executed the Iraq War.

Ms. Saleh is arguing on appeal that the Defendants should not be immunized. She alleges that the Defendants  were acting from personally held convictions that the US should invade Iraq, regardless of any legitimate policy reasons. Specifically, she is pointing to a record of statements made by some of the Defendants in leading neoconservative outlets in which they called for the military overthrow of the Hussein regime as early as 1997.

She is also arguing that Bush administration officials knowingly lied to the public by fraudulently tying Hussein to Al Qaida and the threat of weapons of mass destruction. Such misrepresentations would also make them personally liable for their conduct under relevant law.

The Ninth Circuit has not indicated when it will issue a ruling on the appeal.

What is the Chilcot Report?

The Chilcot Report is the final report issued by the Iraq Inquiry, a committee established by the British Government in 2009 to investigate what happened during the run up to the Iraq War. Composed of British “privy counsellors,” the report was released on July 6, 2016 after more than 6 years of investigation, research, and drafting.

Why is the Chilcot Report important to the Saleh v. Bush lawsuit?

The Chilcot Report contains (i) factual conclusions by the privy counsellors about what happened during the run up to the Iraq War, (ii) actual documentation (including written notes between Blair and Bush) that show a plan to go to war in Iraq as early as October 2001, and (iii) statements of international law by distinguished experts who have concluded that the Iraq War was illegal and constituted aggression against Iraq.

What are some of the pieces of evidence submitted to the Ninth Circuit?

These are some of the excerpts that we highlighted for the Ninth Circuit as evidence that the Iraq War was illegal, and that government leaders were not acting within the lawful scope of their employment authority when they planned and executed the Iraq War:

Conclusions of the Iraq Inquiry Committee:

  1. President Bush decided at the end of 2001 to pursue a policy of regime change in Iraq.
  1. On 26 February 2002, Sir Richard Dearlove, the Chief of the Secret Intelligence Service, advised that the US Administration had concluded that containment would not work, was drawing up plans for a military campaign later in the year, and was considering presenting Saddam Hussein with an ultimatum for the return of inspectors while setting the bar “so high that Saddam Hussein would be unable to comply.”
  1. Mr Straw’s advice of 25 March proposed that the US and UK should seek an ultimatum to Saddam Hussein to re-admit weapons inspectors. That would provide a route for the UK to align itself with the US without adopting the US objective of regime change. This reflected advice that regime change would be unlawful.
  1. Sir Richard Dearlove reported that he had been told that the US had already taken a decision on action – “the question was only how and when;” and that he had been told it intended to set the threshold on weapons inspections so high that Iraq would not be able to hold up US policy.

Conclusions of the Iraq Inquiry Committee related to the legal analysis of the British government leading up to the war:

  1. Despite being told that advice was not needed for Mr Blair’s meeting with President Bush on 31 January, Lord Goldsmith wrote on 30 January to emphasise that his view remained that resolution 1441 did not authorise the use of military force without a further determination by the Security Council.
  1. Mr Wood had warned Mr Straw on 24 January that “without a further decision by the Council, and absent extraordinary circumstances”, the UK would not be able lawfully to use force against Iraq.
  1. Mr Wood wrote that Kosovo was “no precedent”: the legal basis was the need to avert an overwhelming humanitarian catastrophe; no draft resolution had been put to the Security Council; and no draft had been vetoed. He hoped there was: “… no doubt in anyone’s mind that without a further decision of the Council, and absent extraordinary circumstances (of which at present there is no sign), the United Kingdom cannot lawfully use force against Iraq to ensure compliance with its SCR WMD obligations. To use force without Security Council authority would amount to the crime of aggression.”
  1. Lord Goldsmith recognised that there was a possibility of a legal challenge

Underlying statements and facts relied on by the Iraq Inquiry Committee

15 January 2010 Statement by Foreign & Commonwealth Office legal advisor Sir Michael Wood to the Iraq Inquiry Committee

“I considered that the use of force against Iraq in March 2003 was contrary to international law. In my opinion, that use of force had not been authorized by the Security Council, and had no other legal basis in international law.”

18 January 2010 Statement by Foreign & Commonwealth Office legal advisor Elizabeth Wilmshurst to the Iraq Inquiry Committee

“I regarded the invasion of Iraq as illegal, and I therefore did not feel able to continue in my post. I would have been required to support and maintain the Government’s position in international fora. The rules of international law on the use of force by States are at the heart of international law. Collective security, as opposed to unilateral military action, is a central purpose of the Charter of the United Nations. Acting contrary to the Charter, as I perceived the Government to be doing, would have the consequence of damaging the United Kingdom’s reputation as a State committed to the rule of law in international relations and to the United Nations.”

12 July 2010 Statement by Carne Ross, First Secretary of the U.K. Permanent Mission to the U.N. to the Iraq Inquiry Committee

“This process of exaggeration was gradual, and proceeded by accretion and editing from document to document, in a way that allowed those participating to convince themselves that they were not engaged in blatant dishonesty. But this process led to highly misleading statements about the UK assessment of the Iraqi threat that were, in their totality, lies.”

October 11, 2001 message from former British Prime Minister Tony Blair to George W. Bush

“I have no doubt we need to deal with Saddam. But if we hit Iraq now, we would lose the Arab world, Russia, probably half of the EU …

“However, I am sure we can devise a strategy for Saddam deliverable at a later date. My suggestion is, in order to give ourselves space that we say: phase 1 is the military action focused on Afghanistan because it’s there that perpetrators of 11 September hide. Phase 2 is the medium and longer term campaign against terrorism in all its forms. …”

(Mr. Blair was apparently discussing with Defendant-Appellee Bush regime change in Iraq just one month after the attacks that took place on September 11, 2001. Mr. Blair’s suggestion for “phase 1” of the U.S.-U.K. strategy on the war on terrorism to first direct military action toward “Afghanistan because it’s there that perpetrators of 11 September hide,” further supports allegations that U.S. officials used an unrelated terrorist attack to execute a pre-existing plan of regime change in Iraq.  Mr. Blair then went on to discuss a “phase 2” that would include invading Iraq).

December 4, 2001 message from  former British Prime Minister Tony Blair to George W. Bush

“Iraq is a threat because it has WMD capability … But any link to 11 September and AQ [Al Qaeda] is at best very tenuous; and at present international opinion would be reluctant, outside the US/UK, to support immediate military action … So we need a strategy for regime change that builds over time. …”

(This note supports allegations that U.S. government leaders were aware that Iraq had no link to the 9/11 attacks or Al Qaeda and support allegations that U.S. government leaders made false statements to the public about the threat Iraq posed, or its connection to Al Qaeda, in order to support a war and satisfy personally-held objectives of regime change that had no legitimate policy underpinning)

July 28, 2002 message from former British Prime Minister Tony Blair to George W. Bush:

“I will be with you, whatever …

The Evidence. Again, I have been told the US thinks this unnecessary. But we still need to make the case. If we recapitulate all the WMD evidence; add his attempts to secure nuclear capability; and, as seems possible, add on Al Qaida link, it will be hugely persuasive over here.”

(This note confirms that U.S. government official’s intent to invade Iraq was well-formed by July 2002. Mr. Blair’s July 2002 note to George W. Bush observed that U.S. officials thought evidence supporting regime change was “unnecessary” and that an “Al Qaida link” could be simply be tacked onto government messaging in order to sell the war).

Statements by legal experts who have concluded that the Iraq War was illegal

10 September 2010 Submission by Phillippe Sands QC to the Iraq Inquiry Committee

“Distinguished members of the legal community in the United Kingdom have also concluded without ambiguity that the war was unlawful.”

9 September 2010 Statement by Professor Nicholas Grief to the Iraq Inquiry Committee (emphasis added).

“A second Security Council resolution specifically and unambiguously authorising military action was required. The vague warning of ‘serious consequences’ in resolution 1441 did not suffice, and to interpret resolution 678 as granting the necessary authority was not ‘good faith’ interpretation as required by international law. Without such a resolution, the invasion of Iraq constituted an act of aggression, contrary to Article 2(4) of the UN Charter.

What happens next?

The Department of Justice has indicated that it will oppose the filing of these portions from the Chilcot Report with the Ninth Circuit. We will circulate the DOJ opposition once it has been filed.


Request for Judicial Notice of Excerpts from the Chilcot Report


The answer to terrorism is law

The Anglo-American legal tradition is in serious trouble if not a single major U.S. politician is willing to suggest that the most effective way to combat international terrorism is through law and the courts.

Terrorism is a crime under the United States code, defined at 18 U.S.C. §§ 2331 and 2332b . It sits just a few subchapters away from piracy, another international crime which is also adjudicated, relatively successfully, by the U.S. legal system. It is probably tough to remember, but the mastermind of the 1993 World Trade Center attack, Ramzi Yousef, was tried in a civilian court. He is currently serving a life sentence in Florence, Colorado, at a federal Supermax prison.

It would reflect a great deal of strength for a politician to argue that law will dispose of terrorism. First, most of us already know that courts can successfully handle heinous international crimes. At Nuremberg, judges were able to weigh evidence and convict individuals who committed some of the most deeply offensive crimes in history. This work continues in the Hague today with the International Criminal Court. Most international scholars agree that such efforts are largely positive in helping to close the chapter on war and to move a society forward in a more positive, legally-minded direction. If a court was capable of adjudicating the Holocaust, it is surely capable of dealing with international terrorism.

There is strength in affirming fundamental values on which a civilized society is based. We cannot have a world in which some crimes go before a civilian judge, and some crimes are subject to summary execution by the President through a drone strike. In all matters of justice, separate-but-equal is a fatally flawed directive. Historically, the Anglo-American tradition has sought to limit executive power and preserve the ability of a neutral judge to adjudicate disputes — values that have been deeply weakened by 15 years of unending war and which now must be reclaimed or forever lost.

There is strength in admitting that the military approach to terrorism has not only failed, it has made the problem significantly worse. Using a bomb to solve terrorism creates a hydra where chopping off one head only produces three more. Kill Baghdadi and someone else will take his throne, or perhaps three more. Is this not what created ISIS? Is it really so difficult to see how the use of the military in the Middle East has opened the gates of Hell? Is no one really going to question the insanity of the U.S. simultaneously bombing ISIS (fighting Assad) and Assad (fighting ISIS)?

There is strength in dealing with the eventual even-handedness of justice. It is an unfortunate truth that Western countries have also, too, committed crimes since 9/11. Those crimes will require an accounting before a judge, at least some day. And in particular, there will never be peace in the Middle East without an answer for the Iraq War, which will be recognized one day by all peoples as one of the gravest international crimes since World War II. This was a war that was built on lies and sold to a fearful public like the vilest of snake oils. And its bitterness remains. The Iraq War destroyed a country, killed millions of innocent parents and their children, and is the caustic source of the violence that now roils the Middle East and strikes into Paris.  Justice requires an answer for the Iraq War —  a good and healthy thing as such justice will act as a lesson to the future that the human species will never survive if it relies on war, particularly at a time when so much destruction can be committed by so few in number.

Now, the specter of fascism creeps in this petty pace as politicians in Europe and the U.S. create false enemies and denounce refugees, threaten more war, and pander to the ugliest motivations of each of their respective nations. There is strength in rejecting this fascism.

The world should put together its finest legal minds from all countries — from the U.S., from Latin America, from Europe, from Africa, from Asia, and yes, from the Middle East. Let these minds define the problem, propose a legal solution, and then either work with the International Criminal Court in the Hague, or set up a special tribunal to adjudicate the issue of terrorism. Let that court issue warrants, and make sure that the world will cooperate with that court to arrest those who are wanted. Give the accused a lawyer, have a trial, and issue a sentence. Put the guilty in jail. And acquit those for whom there is not enough evidence, and let them go.

And after the world has set up that process, the world should do the same thing for those on all sides who are committing crimes. All people should take a look at the log in each of their own eyes, particularly after analyzing the speck in that of the other. The people of every nation must look into their hearts and their minds to figure out why governments, everywhere, are getting away with murder. The world needs to put a stop to that, as well.

I know very little about very little. But there is one thing I know to be true, like the light of a thousand suns. The answer to terrorism is law.

Gazing into the abyss

Is it impossible to conceive of a peacetime USA?

Culturally and politically, American leaders with both political parties have declined to provide a vision to the American people of a country that has declared an end to war in the Middle East and the resumption of a peace time society.

A F-15C Eagle, piloted by 1st Lt. Johnathan Pavan from the 144th Fighter Wing out of Fresno, Calif., takes off from 5 Wing Goose Bay, Canada, while participating in exercise Vigilant Shield 16 Oct. 20, 2015. From Oct 15-26, approximately 700 members from the Canadian Armed Forces, the U.S. Air Force, U.S. Navy and the U.S. Air National Guard are deploying to Iqaluit, Nunavut, and 5 Wing Goose Bay, Newfoundland Labrador, for Vigilant Shield 16. (U.S. Air National Guard photo/Senior Master Sgt. Chris Drudge)

Instead, the last 14 years of war have produced an overgrown Executive branch, unconstrained by law, by Congress or the judiciary.

If nothing is done, the Executive branch, as a domestic institution, will almost certainly overwhelm Congress and the courts and will permanently disrupt the careful checks-and-balances system that is the hallmark of the American constitutional order. There is a real threat that unending war will create a domestic monster.

The hallmark of this overgrown Executive is the continued and unabashed violations of law with respect to military action.

Today, the Executive branch wallows in an aggressively militant governmental apparatus that routinely violates law and expands the boundaries — both legally and culturally — of permissible violent government conduct.

Bush-era illegality in the form of wars of aggression, torture, war crimes and domestic spying caused outrage amongst the public when these crimes were initially revealed.

But outrage without an outlet has, through some reverse osmosis, transmuted itself into a permanent cultural numbness.

The continued silence amongst members of the cultural, social and governmental elite with respect to Bush-era crimes permits a similar silence to surround illegal activities by the Obama Administration.

For example, the public seems to willingly accept the notion that the use of drone strikes (which in some instances may constitute illegal acts of aggression and crimes against humanity), the continued use of indefinite detentions at Guantanamo Bay and the normalization of domestic surveillance powers under national security auspices are the “new normal” — no matter whether laws are broken.

There is very little legal basis for Obama’s bombing of Syria, both internationally and domestically. In a functioning democracy, the bombing of a sovereign country would create widespread political discussion. Yet the decision in the US to bomb Syria was made practically overnight.

The same was true of the recent announcement — again, met with silence — that US ground forces would begin to enter Syria.

Even the bombing of a hospital in Kunduz, in what appears to be a clear prima facie war crime, produces mute commentary.

Carl Schmitt, the philosopher most associated with the intellectual defense of National Socialism, applauded a strong, law-breaking executive on the grounds of what he termed the “state of exception.”

Schmitt believed that in times of crises, a sovereign had to act outside of the normal constitutional framework in order to save society from existential threats. Schmitt thus defended the sovereign who violated the law, if in so doing, the sovereign could help a society delineate between friends and enemies, and give meaning to its citizens.

Nothing upset Schmitt more than the weakness of societies that had adopted liberalism, societies he viewed as hopelessly depoliticized and without the glory associated with a strong state.

Schmitt’s foul logic does much to explain the current “state of exception” in US politics. The supposed and ever present threat of terrorism is used as a means for the Executive branch to act outside of the law in order to save the law. Whether it is a Democrat or Republican in the White House, the law breaking remains the same.

Meanwhile, such illegal international actions threaten to shatter the remaining shards of what is left of the global peace. In attempting to “defend freedom” by the “war on terror,” the American government and its allies create further instability, which in turn creates additional violence directed against Americans. The CIA refers to this as “blowback.” It is not a difficult concept to grasp, and the fact that US leaders refuse to alter their conduct in the face of blowback means they are either too dense or too intentional in their use of military action abroad. Either conclusion should be frightening to a thinking person.

It is Hannah Arendt, another German thinker,  whose 20th century insights are even more profound in this current time. In her classic, Eichmann in Jerusalem, she coined the “banality of evil” as a phrase that described the seeming stupidity (or at least the clumsiness) of people like Adolph Eichmann, who were responsible for countless atrocities and yet were able to defend their actions with trite rationalizations that they were simply doing their jobs, or following orders. Today, there is a similar caustic fog that shrouds the culture, a darkness that no one speaks of, and an acceptance of criminal conduct by those in power. Empathy towards the countless innocent victims (perhaps millions at this point) who have been killed in their homes, their schools, or even at their own weddings, all in the name of the War on Terror, is entirely absent from everyday discourse.

Americans need only look to their Founders to understand the consequences of illegal warmaking. James Madison, the chief drafter of the US Constitution, observed, “Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.

“In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people.”

As Madison observed, war itself becomes a threat to domestic security and individual liberty. It acts as the pretext for an overgrown Executive and the beginnings of a criminal state.

Madison’s classical liberalism is now threatened by the views of Schmitt and other statists, who seemingly welcome the growth of the “unitary Executive” and the beginnings of domestic despotism.

So long as Americans give their leaders carte blanche to wage war in their name, to break laws domestically and internationally, and to avoid scrutiny or oversight for such conduct, then criminality will only increase, and with it, an increase in the potential for sudden instability in the global economic and political order.

“He who fights with monsters should look to it that he himself does not become a monster. And when you gaze long into an abyss the abyss also gazes into you.” Frederick Nietzsche, Beyond Good and Evil, aphorism 146.

Litigating the US Invasion of Iraq