President George W. Bush announces his $74.7 billion wartime supplemental budget request at the Pentagon as Secretary of Defense Donald H. Rumsfeld (center) and Deputy Secretary of Defense Paul Wolfowitz (left) look on.  The President visited the Pentagon to meet with senior defense leadership and to announce the supplemental request which, once appropriated by Congress, will pay for the direct costs of Operation Iraqi Freedom and the global war against terror.  DoD photo by R.D. Ward.  (RELEASED)

Lead Counsel Discusses Saleh v. Bush on Chicago’s The Perri Small Show

Earlier this month, lead counsel Inder Comar was interviewed about the Witness Iraq case by Chicago DJ Perri Small.

Listen to the interview and check out the full transcript below!*

Interview highlights include:

  • details about our ongoing appeal before the Ninth Circuit;
  • amicus briefs from Ramsey Clark and the Planethood Foundation;
  • our allegation that the Iraq War was launched not on genuine national security concerns, but on neoconservative ideology held by members of the Bush Administration;
  • how the case illuminates the lasting significance of the Nuremberg Trials.


Perri Small: It is 10:07 on the Talk of Chicago, 1690 WVOM. My name is Perri Small. I think you guys are going to find this quite interesting. Former U.S. Attorney General is bringing a legal challenge against Iraq war officials and I am fascinated about who is bringing this suit. Members of the Bush Administration are being sued for their involvement in the Iraq war by an international team of lawyers, one of whom was a former U.S. Attorney General Ramsey Clark. The team was assembled by Sundus Saleh, an Iraqi single mother. Joining us on the live line is attorney Inder Comar and her client—his client—is Sundus Saleh. Thank you attorney. Thank you so much for joining us today. How are you?

Inder Comar: Very well, thank you for asking. Thanks for having me on.

PS: I think this is absolutely fascinating. I have heard people talk about many times saying that maybe the Bush Administration—members of this administration—should be brought up on war crimes because of the Iraq War and the lies that were told about mass destruction and how—just the situation that we are in today, with ISIS, the Arab Spring. All of this I would say, in my opinion, is the direct result of the U.S.’s involvement in the Iraq War. So Inder—Attorney Comar—tell me how this suit came about and tell me a little bit about your client.

IC: Sure, absolutely. So my client is a single Iraqi mother. She fled Iraq in 2005, really at the height of the violence. She was a refugee in Jordan, and currently has a refugee status in Australia. And she brought this suit—we brought this suit—two years ago to challenge the unlawfulness of the Iraq war itself. So you’re absolutely right that many lawyers, already, have tried to bring about torture challenges, for example, for the torture that is now well documented that took place in Iraq against many members of the Administration. Those lawsuits were unfortunately unsuccessful. So what we’re actually doing, or the theory of our case, is that the war itself was illegal. And we’re citing to the Nuremberg trials, so we’re citing to precedent that is more than sixty years old, that was used against the Germans after World War II. And at the Nuremberg trials—which was an effort by the U.S. and the U.K. and the other __ powers – France and the Soviet Union—that court held that the worst thing that a leader can do—worse than torture, worse than crimes against humanity—is actually bringing an illegal war itself. And that’s called the crime of aggression. And they called aggression the chief, excuse me, the supreme international crime. So that’s a quote from the case. And so we’re telling this court—we’re in the Ninth Circuit right now—we’re asking this court to review that holding from Nuremberg, that rule, which it can do, and other courts have reviewed Nuremberg in other contexts and found it to be binding law in U.S. courts. So we’re asking the Ninth Circuit to do the same thing here, to review the chief rule from Nuremberg, which is that those who bring illegal wars must be held to account. And we’re asking that court to honor that rule in this case, to review the lead up to the war, all the statements that were made, the planning that went into it, which we elect was illegal, and declare the Iraq War illegal. And if so, to order that damages be paid to people who were innocent victims of war.

PS: You know I suspect, that the reason why this isn’t a lead story in media is because nobody expects this to go anywhere. Especially—she had another—her suit was dismissed in December 2014 by the United States District Court for the Northern District of California, ruling that members of the Bush Administration had immunity from a civil suit. So, tell me, why are you going forth with this? Is this part of your strategy? Because the civil suit didn’t go anywhere, so tell us what’s different from this suit, as opposed to the civil suit.

IC: Yeah, absolutely. So, this is an appeal—so the civil suit, the underlying civil suit—was dismissed in December. And so we lodged an appeal in January, and this is the briefing that has happened since then. And we were very lucky and very fortunate to have this former U.S. Attorney General file a brief in support of the case. Ramsey Clark has been active ever since leaving the Johnson Administration—he was under Johnson—and has been a real advocate for human rights and civil rights. We had a brief that was filed by the Planethood Foundation, which was founded in 1996 by one of the last living prosecutors from Nuremberg. So we’ve assembled a really great team to take the case now on to appeal. And you’re absolutely right, the issue now before appeal, is whether these officials are actually immune. So that’s the first challenge now, because the Federal District Court held that there was this immunity that prevented the case from proceeding. Just like the courts have done over the last ten years with respect to the torture claims. And so we’re saying that immunity can’t apply here for two reasons.

One is because this was the exact defense that the Germans made at Nuremberg, which was that they were immune because everything they did was lawful under German law. And Nuremberg rejected that. I mean that’s one of the key principles from Nuremberg, is that you can’t rely on your domestic law as a defense to allegations of international aggression. So that’s our first point. And our second point is that, we’re making the claim that the immunity law, as it stands, requires that is people be acting within the lawful scope of their employment. So it’s interesting, the courts here—as they did in the torture cases five or six years ago—they actually looked to District of Columbia labor law, so they looked to the labor law to determine if a government official was acting within the scope of their valid employment authority. And we’re alleging that the facts here are just so ugly—all the misrepresentations that were told—the Neoconservative ideology which we really identify as the driving force of the war. That this war was based not on genuine national security concerns, but it was based on this foul ideology, using the United States military in a very aggressive manner against other countries, purely for sustaining, or bringing American military supremacy to the region. And so we identify that as the real issue that prompted war. And so we want the Court to say, in light of that, these people were not acting lawfully. They had a preexisting agenda they came to office with, and then they implemented it. It’s like getting the keys—here’s the analogy—when you get the keys to the company car, and then you go off on a frolic and detour. In those cases, you don’t hold the employer liable, you hold the person you took the car away, right, and did whatever they wanted to do.

PS: You know, I was reading the article, and they were talking about what your basis was—how this came about—was that you were reviewing some of the statements that were made by President George W. Bush, real President, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, and other high ranking members of the Bush Administration. We’re going to take a break. When we come back, we’re going to continue the conversation. I want to know more about your client. I want to know whether your family thinks you have lost your mind, and a myriad of other things.


PS: We’re talking to Attorney Inder Comar, and he has a client Sundus Saleh. From what I understand, is a single mom. She doesn’t live in Iraq, she lives here in the United States, right?

IC: No, she’s in Australia right now.

PS: She’s in Australia?

IC: Yeah, she’s a refugee in Australia.

PS: So, you know what, I have to ask you this. I mean this is daunting, to say the least. Do your mom and dad think you’ve lost your mind?

IC: [Laughs] Well, that’s a good question.

PS: Yeah, I mean I have to ask you, do your parents think you’ve lost your mind? All these wonderful attorneys that you’ve been able to bring together—you’re serious about this, aren’t you counselor?

IC: Oh, absolutely. This is a very serious effort to apply the rule of law with respect to war making. And we’re not asking the courts to do anything new. Everything that is talked about, or what I’ve told you about, was announced more than sixty years ago at an international tribunal that was convened in large part by Americans. So, we’re not asking the courts to do anything outrageous, or radical. In fact, we’re asking the contrary. We’re saying that what’s radical is the ability for national leaders to violate law with impunity. And that’s extremely dangerous for a Republic, and for a society that has to govern itself. And so this is—we could not—the team that we have could not be more serious about the importance of making sure that national leaders, when they violate the law, are accountable to a judge.

PS: Oh, I’m sure you’ve been called a communist. What would you say—what happened during the Bush Administration—I remember sitting and watching as the country was making its—I remember Colin Powell sitting there at the UN and making the case why this country should go to war with Iraq. And it was so convincing! It was so convincing. And so one of the reasons why I don’t really hold a lot of these congressmen and these senators—hold their feet to the fire this much—is because they were so convincing. And I think Colin Powell—General Powell said—he’s a little upset that he was given wrong information. And of course, this was very detrimental to his credibility, for years, and will forever, I think, be a stain for him. I mean, do you remember? I mean, were you old enough? I don’t know how old you are—were you old enough to remember seeing Colin Powell giving this compelling reason why we should strike Iraq?

IC: Yes, oh I totally remember that. And as part of the case we reviewed all those materials. And you’re absolutely right that General Powell has repudiated that speech. He has gone—he said in an ABC interview—he calls it a blot on his record. And I think that’s one of the things we did, is we reviewed everything with the passage of time, we looked back at what they said, and tried to discern what was going on. Because what they were really doing and what we allege, was an intentional effort to mislead people in two ways. First, there was an intentionality to mislead people to think that Sadaam was in league with al Qaeda. Which was not true—there was no evidence of that ever. In fact, all the evidence is strongly to the contrary. But you have these administration officials making this case that they’re essentially business partners. Which is not true. The second misrepresentation—

PS: —Well I’ll let you tell me that—the second misrepresentation—let’s talk about that when we come back from the break. You have some more time?

IC: Oh yeah, absolutely.

PS: Alright, then. We’re talking to attorney Inder Comar. And I’m going to find out more about the plaintiff in this case.


PS: For those of you who are just joining us, members of the Bush Administration are being sued for their involvement in the Iraq War by an international team of lawyers, one of whom was a former U.S. Attorney General Ramsey Clark, which I find fascinating. The team was assembled by Sundus Saleh, an Iraqi single mother. So, I’m going to start there again—oh, when we went to break you were talking about—you gave us the first and now you’re going to give us the second misinformation that was given to the American people. Inder Comar, our guest, who is an attorney. Thank you so much once again for joining us and you can give us that second note that you were going to give us.

IC: Absolutely. So the first was the alleged link between al Qaeda and Sadaam, and the second is this notion that there were weapons—that they had weapons. And again, we just looked at the statements, we looked at what people were saying, what journalists were saying at the time—that there weren’t any weapons. So we’re alleging again that they blew that out of proportion. You know, there was a famous quote from Condoleezza Rice that said, “We can’t let the smoking gun be a mushroom cloud,” right? Which obviously stoked fears of 9/11. And we allege that 9/11 was used as basically a fear mechanism, to make everyone afraid, and that would support the war.

PS: And the second one?

IC: Oh yeah, so the second one, was the supposed notion that they had nuclear weapons, that they had weapons on mass destruction. We looked at that and the evidence is again—the evidence that was available to them at the time is just to the contrary.

PS: All right, tell us more about your client, tell me more about your client.

IC: Sure, yeah.

PS: Yeah, I’m very interested because I’m sure that if there were more people aware of this lawsuit, and if there was any type of media interest, her life wouldn’t be worth a dime. So, I’m saying, for her to come forward and be a part of this suit I think is very brave of her. But tell me about this client.

IC: Yeah, absolutely so she had a very middle class life in Iraq, as a lot of people did. I mean she was an art teacher. She’s not Muslim—she’s a member of a religious minority called the Sabean Mandean people. And they worship John the Baptist, actually.

PS: They worship—I’m sorry—they worship whom?

IC: Oh, John the Baptist.

PS: John the Baptist?

IC: Yeah, so they think that he was the real guy—the real messenger of God. So when you go to her house, or when you go to other peoples’ houses who are in this faith, the pictures on the wall are of John, and not of Jesus, or they’re not of Muhammad. They’re a very discreet and insular religious group. And they’ve lived in Iraq for two thousand years. But after the invasion, Iraq became a very destabilized place. She was kicked out of her home—the home was taken from her by militia groups. She fled to Bagdad—she lived in the North—so she fled to Bagdad, where she worked for the election commission for sometime. I don’t remember if there was that same election. And as a member of this religious minority she was targeted by a lot of these Shia militia groups. And so the violence just became so bad that she fled with her children—she had her four children with her—and they fled and they went to Jordan, initially, where they lived, and where she has basically lived since 2005, up until about a couple years ago. And then she was able to get refugee status in Australia, where she lives right now.

PS: That is really interesting. So, how often—well we know we have all this great technology—so how often do you and the other attorneys Skype or teleconference or whatever about this case. I mean, what is daily? How are you actually moving this case forward?

IC: Right, well that’s a great question. I mean, the case is being moved forward by the deadlines. So the biggest deadline we had was this court brief we that filed in May, and then in early June, and that’s when we had this brief that was filed part by Ramsey Clark. So, when there are deadlines—and this is true of any lawsuit—when there’s a deadline, you do a lot of talking. Then after the deadline, you wait for the next deadline. So we don’t have anything to do until the wintertime. And my hope is there will be a court hearing before the Ninth Circuit in the late winter, early spring. So maybe February or March of next year.

PS: So how do our listeners follow the progress of this case? Are you doing any type of social media? Is there a website? How do we find out?

IC: Yes, absolutely. So we have a website called Witness Iraq—so one word, w-i-t-n-e-s-s-i-r-a-q dot-com —so if you go there, we have copies of the important pleadings. We have a Facebook page, so if you look for Witness Iraq on Facebook, you’ll pull up the page. And the Facebook page is actually the main place we’re updating. And there we put up articles that people write about the case, interviews—we’ll certainly mention this interview—and then also updates about where the case is and how it’s progressing. So it’s all being blogged about on the internet, and that’s the best way to kind of keep updated about the status.

PS: You know, one of the things that just I find so fascinating about this is about, is when you talk about the Nuremberg trials. And I would say the vast majority of Americans today do not have a clue about what Nuremberg was all about. There have been movies done, of course. Great actors—the greatest actors of all time—were in this movie about the Nuremberg trials. So what is it like when you present this argument, when you talk to people, and you talk about Nuremberg, do you kind of get the same sense that I do that they don’t know what the hell you’re talking about?

IC: Well you know, it’s not just people—it’s judges. So we have an education battle that we have to educate the judges. And they’re starting to get it. Like I’ve mentioned, in the last ten years or so, there have been two or three really great court cases were the judges have actually looked at the Nuremberg trials and have said, this is binding U.S. law, as far as we’re concerned, or is incorporated into U.S. law. But before then, there was a little bit of a challenge. So we have a challenge not just with non-lawyers, but also with the lawyers and judges themselves. But that being said, there’s a reason, maybe, that we’ve culturally forgotten about Nuremberg. For me it’s very powerful that after the U.S. defeated one of its most nefarious enemies in history, we gave them a trial. That’s a really remarkable thing for a country to do to another country.

PS: It was! It was amazing!

IC: Right, exactly. The Soviets just wanted to hang these guys, the British just wanted to hang these guys. The Americans who were at Nuremberg were very idealistic about the power of law to help shape human behavior and to create a future where leaders would be held to account before the law. This idea that all are equal before the law—this is what was really guiding these people. And you read their letters, you read what they told the judges—they were idealistic. And you had a comment earlier about how people might call me a communist—but it’s funny that these people—and what is guiding me is this very liberal democratic notion about the rule of law. And that’s what was guiding these people. So, I didn’t learn about Nuremberg until law school, and when I learned about it I was shocked that all this had happened, like you mentioned, and for me—

PS:—How old are you, Attorney Comar?

IC: I’m 35.

PS: I want to punch you.

IC: [Laughs] Why’s that?

PS: Because you know, you have your youth. And that is a sad commentary on our educational system in the United States. I mean we were taught about Nuremberg in social studies class. And you said you had never heard of Nuremberg?

IC: Not until law school, yeah. I mean I had heard about it, but I never really learned about it until then. I took a class on it.

PS: Wow.

IC: It was specialized!

PS: The dumbing down of America—I talk about it all the time. I’m not talking about you specifically, but, I’m just saying, that says a lot about out country and the educational system.

PS: Yeah, and you know what Attorney Comar, I just think you really have just done something magnanimous in this quest. Because like I said I’m sure there are people that think you have lost your mind, I’m sure people think this is a frivolous lawsuit, but I just have to tell you, it’s very brave. Personally, I’ll just tell you, I hope something comes out of this. But our judicial system is so corrupted, the odds are against you – and you probably know that the odds are against of you—but the fact that you want to move forward with this is just incredible to me. And can I just ask you, what drives you?

IC: Well, what drives me is that sense of idealism I just mentioned. And what drives me is that, as a country, we have to find—each one of us has to find that issue that we’re passionate about, and that we know to be true from a perspective of social justice. I mean when you look at what’s going on today, there’s no shortage of problems—there’s no shortage of issues that need to be addressed. From an environmental point of view, from a social justice point of view, from an income, and gender and racial equality point of view—there’s so many things that need to be tackled. And my issue, the thing that I’m passionate right now, is issues of war and peace, and this issue of the rule of law, and this issue of real democratic accountability of leaders who start wars, which in my mind was banned at Nuremberg. And that’s what drives me, but I think everyone has their—based on their experiences and lives—has something that drives them as well. Something they wake up and think about and say, “Wow, I really wish I had the energy, or the bravery, or the courage to do this thing that I really think would make a big difference.” And I would say, just do it. Because no one’s going to do anything for us. We have to shape the system for ourselves, and we have to have the energy to make a difference for the better. Because it’s not doing to happen by itself. And it will take a lot of hard work. And you know, actually, no one has ever told me that this is a frivolous case, and no one has ever sent me any hate mail—to the contrary. So I think that if I can do it, I think other people can find issues that they’re inspired about, and they can work hard in the face of what may seem like insurmountable odds. But that’s been true of any kind of social justice.

PS: Yeah, anything that’s going to exact some type of change. I thank you so much. It’s that people can follow this?

IC: Yeah, absolutely.

PS: All right, so when we come back I’m going to come back to Beau, and others. If you want more information or to follow this this case, go to

*This transcript and recording have been lightly edited and callers have been excised for clarity.


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On April 18, 2015, Inder Comar, Esq. was invited to speak at the Kuala Lumpur Foundation to Criminalise War’s International Forum on Peace and Justice. He presented on the Saleh v. Bush case and its implications for international justice alongside diplomats, politicians, and war experts including Hans von Sponeck, the former UN Humanitarian Coordinator for Iraq, and Tun Dr. Mahathir Mohamed, the fourth Prime Minister of Malaysia. To listen to the speech, click the embedded audio player above. The text below has been edited for clarity.

Thank you very much. Honored guests; Tun Dr. Mahathir Mohamed; Tun Dr. Siti Hamseh; thank you for the opportunity to speak about the lawsuit that I currently lead in the United States.

My topic is, “Where do we go from here?” So what I’d like to do is present a very small overview of the case, talk about where we are procedurally, then give some thoughts as to how the case that I’m leading could a model for actually using the theory of aggression, which came from Nuremberg, and implementing it not only in courts in the United States, but in courts all over the world.

The theme of my speech is basically that so much has already been done for us as partisans in the cause of peace, and a lot of that work was done more than sixty years ago at the Tribunal in Nuremberg against the defeated Axis powers. With that as precedent, it’s quite amazing, actually, what might be possible, and a lot of where I’m coming from is as a student of Nuremberg, having learned about the Nuremberg case in law school, having studied it and read it now countless times, learning about the crime of aggression that was the chief crime prosecuted at Nuremberg.

So much has already been done, and I think that the challenge for us here, today, now, is to take that hard work and to move forward into new frontiers and to apply it in courts of law as we would with any other type of law.


First, some brief background about the case. In 2013, my client [Sundus Shaker Saleh], who is an Iraqi refugee, filed a lawsuit in San Francisco, California, in the Northern District of California, which is a federal court, alleging the crime of aggression. The defendants in that case are the six highest ranking Bush administration officials: George W. Bush, Richard Cheney, Donald Rumsfeld, Condoleezza Rice, Colin Powell, and Paul Wolfowitz. So she is suing them in a civil case for her damages as a victim of the war, in much the same way that she would sue anybody for any cause of action.

To make it very simple, if George Bush had hit her in a car, for example, there would be no controversy that she could sue him if she were injured. It’s a similar type of claim that we’re making: his conduct and his actions caused her monetary damage and under the American system, she has a right to seek her tort damages, her tort relief.

The basis of the lawsuit in the United States is a very old law dating from 1789, the first year of our republic, known as the Alien Tort Claims Act. The first Congress in the United States passed this law to permit non-U.S. citizens—non-Americans—the ability to go to the United States courthouse and file claims against anybody for violations of international law. So you have to allege violations of international law in order to use this law.

For about 200 years, people have used this law for piracy cases, for example. More recently, in the 1970s and 1980s, people started to use the Alien Tort Claims Act for claims of torture or for claims of crimes against humanity.

In this case, we’ve alleged the “supreme crime,” the crime of aggression, as Ms. Saleh’s international law claim. What this suggests is that just as you could pursue a pirate under this law, or just as you could pursue a torturer under this law, you must be able to pursue those who commit the “supreme crime”—the crime of aggression. In this case, she’s pursuing the six people who caused the Iraq War. As we know from Nuremberg, you don’t get to sue the soldiers who committed the aggression: they’re not responsible. The people who are responsible are the leaders who caused the aggression. And those are the people who are giving the orders, who are planning and executing these crimes.

We filed the lawsuit. The United States Department of Justice headed by President Obama moved to immunize these defendants soon thereafter. They requested that the federal court immunize them under domestic law, on the basis that these defendants were acting under the scope of their valid employment when they planned and waged the Iraq War.

We fought that certification for more than a year and a half. But unfortunately, in December of last year, the District Court agreed that they were immune and immunized these defendants from further proceedings. We’ve since appealed that order, and right now that case is on appeal in the Federal Court of Appeal for the Ninth Circuit in San Francisco.

At the end of next month, we’re due to submit a brief arguing a very specific point of law on appeal: whether or not a domestic immunity applies to allegations of aggression.

Now for those of you who are familiar with Nuremberg, you may recall that this was the exact defense—or one of the defenses—raised by the German defendants. They argued that everything they had done was valid under German law and, as a result, they couldn’t be held guilty for something like aggression.

One of the things that we’ll be raising in our brief next month is that that issue was decided already at Nuremberg: domestic defendants do not get to raise that as a defense.

Similarly, we’re going to be citing the Pinochet case, which came down in the late 1990s from the British House of Lords, one of the most conservative legal bodies in the world. But even that legal body decided in 1997 that Pinochet was potentially liable. They said that Pinocet could not rely on his domestic immunity—which he claimed he had as a life-long senator of Chile—to avoid the charge of torture that was brought against him by the Spanish judge, Baltasar Garzón. We’re going to be citing that as persuasive authority on this point.

Pinochet is a very critical case because this issue is, I think, the final wall when we talk about accountability of leaders: the ability for a leader to claim some type of immunity. Right? This is what has to be, I think, destroyed in our minds and destroyed in the minds of judges once and for all. Why should immunity apply merely because someone was acting as a leader, if the act in question was illegal? That’s a key question.

In the last decade, many amazing lawyers brought similar lawsuits against Donald Rumsfeld for torture. He was immunized under very similar theories, which I think was a very upsetting moment in modern U.S. legal discourse. What we have to do is challenge that, battle by battle, step by step, proceeding by proceeding.


So that’s the background of the case, and what I’d like to do is move now onto concrete recommendations that, as someone who is fighting in a courtroom to make this happen, I would like to see.

When I brought this lawsuit, there was nothing institutional. If I was bringing a lawsuit about electronic privacy, for example, or an environmental issue, or freedom of speech, there are institutions and organizations both in the United States and worldwide with databanks of research, with authority, with reputations, who would be willing to support that endeavor, and to help bring a concerted movement and unity and solidarity to those issues.

There doesn’t exist anything like that for aggression, other than this foundation [the KLFCW]. This foundation is the first entity that’s out there that has done a lot of the hard work in describing aggression, in gathering together the experts, in moving the legal research forward because the last case about aggression was more than sixty years ago, right? Other than the Tokyo Trials and Nuremberg, there hasn’t been any precedent set on aggression other than this 2012 judgment.

What I’d like to offer are some thoughts as to how we can take this battle now on the offensive and go into courthouses, go find venues where we can try and do our best. Ultimately, I think, we can convince judges that this is the law—and to not follow it would not only upset Nuremberg, it would validate the defenses made by the Nazi defendants, who argued that this type of law could never exist, that everything they did was completely legitimate, that they were simply following orders.

If those things don’t give you a chill, they ought to, because these are the exact defenses that the government is making in my case: that everything these defendants did was valid, that the court shouldn’t scrutinize war making, because war making is outside the scope of what the sovereign can be liable for.

This is a rehash of Carl Schmitt’s theory about the exceptional sovereign. Carl Schmitt, who was the philosopher for the National Socialists (or one of them), presented a view in one of his books called The Concept of the Political in which he argued the sovereign can act outside the law and doesn’t have to be accountable to law, and that a valid sovereign has every right to act in an exceptional manner, even if it’s counter to the constitution or the grounding law of that country.

That’s the idea that we have to fight: that sovereigns or that individuals who become sovereigns can act outside the valid scope of what the laws permit. That was the philosophical basis of National Socialism, and that’s something that needs to be really exorcised from judicial houses and from politics altogether.

In terms of where we go from here, I want to propose a concept that comes from Ancient Rome. In Ancient Rome, the senators, who were very ambitious, would battle for power amongst each other in order to gain influence in the Senate so that they could have more fame and glory. The term they came up for that was something called auctoritas in Latin. The modern English word “authority” comes from that, but auctoritas in Latin meant something more: it meant the ability to charm people and governments and judges and anybody to listen to what you had to say.

For example, in the famous battle between Pompey and Caesar [at Pharsalus], both of whom were extremely accomplished generals who had conquered vast territories and subdued many enemies of Rome, there was a valid question between many of those Romans: who would they follow? Who had the greater auctoritas? That would enable them to command the Senate, to raise legions, and to ultimately fight for dominance in Rome.

We can take the principle and apply it to the idea space. What we need to think about is, how can we raise the auctoritas of this idea of aggression and the liability of people who commit aggression?

One of the battles that I have in an American courthouse is to convince judges that this is what the law is. Let me give you an example: If I were to file an intellectual property case, a trademark case, which I do a lot for clients, I don’t have to tell the judge what the law is, because the judge has seen this a thousand times. The judge knows the law—I just have to display what the facts are and why I’m right.

When I’m bringing this case about aggression there’s an additional battle, because I have to unearth 60 years of history to educate a judge who probably has never heard about the Nuremberg court. I have to tell them why Nuremberg is relevant, why Nuremberg is important, and that takes up half my brief. It’s already an uphill battle when half of my pleading has to be done on this educational effort.

That’s what we need to create, as people who are committed to the idea of peace and committed to the idea that aggression is criminal: We have to create that backdrop already, so that when a judge receives a legal complaint that alleges aggression, there’s no homework that we have to do. The judge already understands the language that we’re talking about. The judge already understands Nuremberg—remembers Nuremberg, remembers the principles about Nuremberg: Wars of aggression are not merely illegal, they are criminal. These are the holdings of Nuremberg, and under U.S. law, those are binding norms (that’s binding law that comes in as a common law element).


I would argue for three different things that international organizations can do to help me and lawyers like me in this fight to criminalize aggression.

The first is what I would the proactive litigation approach. I think it’s time that organizations committed to peace join the litigators and step foot into court. And it’s time to actually take the battle into the legal courthouses. Just like with any type of litigation there are going to be battles that we’re going to lose. There’s going to be motions that we’re going to lose; there are going to be courts who aren’t going to like us. But fundamentally, there are going to be things that we can do and that we can win.

It’s time, for example, that we reach out to those professors out there who are writing about these subjects and ask them to give us legal research, to put together amicus briefs. One of the things that I’ve noted is that many international courts permit the filing of amicus briefs: The International Criminal Court, for example, permits the filing of amicus briefs. The European Court of Human Rights permits the filing of amicus briefs. The domestic courts in the United States permit the filing of amicus briefs. This is the way we educate the judges, by providing them with briefs and memoranda of law from distinguished panelists and legal researchers from all over the world, to identify what it is about aggression that exists and what aggression is, basically.

One of the things I think we can be doing is finding out what those venues are, where those courts are, what the rules are, and just begin submitting briefs wherever we can. Even if the clerk reads it and not the court, someone needs to be taught what these rules are. We have a giant education gap that we have to fill. That’s something we can immediately do: start putting all this amazing research into a legal pleading and submitting that to courts wherever we can find them.

The second thing I would propose would be direct outreach efforts. What I mean by that is that we have to make aggression a topic of conversation around the world, not just in courthouses, but also with NGOs, and rights groups. What I think groups can start to do is follow and comment on other legislative efforts to criminalize aggression. Something that groups can do is to look at the protocol to the ICC which will criminalize aggression as early as 2017, and follow and comment on implementation of that, and on other international efforts that could help, again, to educate people about aggression.

The third thing that I think groups can do is to finally support independent research. That’s the great victory of the 2012 case, which was based in part on aggression—to start moving the ball forward. Again, the last court case about aggression was more than 60 years ago. The international tribunals that have been founded since then—in Yugoslavia and Rwanda—specifically removed aggression; it was not part of their jurisdiction. So we haven’t had judges or justices actually examine law in this area for more than 60 years.

We need to support independent research so that we can talk about what aggression is moving forward. We need to be able to talk about the legal bases of aggression that exist today and put it in the words of law, so that people like me can pull up those articles and cite that to the court to show that this is something that isn’t dead—this concept of aggression is alive and well. It’s never gone anywhere, and it’s still part of our conversation.

I also think it would be interesting to think about successful groups like UNICEF, which has been amazing in bringing the conversation about the rights of children internationally. They have a very interesting approach where they have a master organization that is able then to create chapters all over the world, to raise awareness. Some of the efforts with children’s clubs, for example, are amazing and might serve as a model for how we could directly increase the dialogue and conversation about aggression and criminalizing war.

This type of multi-faceted approach—litigation efforts, direct outreach, and independent research—this type of multi-prong, multi-level approach is the way we have to proceed. And we have to be willing to lose a few battles, because that’s the only way these things happen. I’ve lost motions in this court; that doesn’t mean I’m going to lose the issue altogether. It is a bit daunting, to be honest, but it’s something I feel is important, and it’s something that I think a lot of lawyers would feel is important.


Sometimes when I’m doing this case, I wonder if I’m crazy because there’s no other research and no other resources out there about aggression. What grounds me is thinking about the Nuremberg case. I’m just pulling a lot of this stuff from Nuremberg. And my thought is that if this is what’s holding Nuremberg together, then this has to apply in the U.S. court as well.

We have a concept, again from Rome, called the hostis humani generis: “enemies of civilization.” What U.S. law recognizes is that pirates, for example, are hostis humani generis—they are enemies of civilization. Wherever pirates go, they destroy civilization. Our effort has to be to equate the people who commit aggression to pirates, to enemies of human civilization, because that’s in fact what they do: they destroy civilizations elsewhere, and then they destroy the civilization at home.

What we have to do is to equate that together, so that we can make those who commit aggression enemies of civilization in the same way that pirates are. We need to start using the same language. These concepts are there, they are all sitting there—we just need to do a better job at packaging this stuff and then presenting it to courts.

I’ll conclude my talk on those points, but I’m actually very optimistic about the future. I think there is so much work that we can start to do immediately, starting today, that could have really amazing ramifications.

I know that the world is sick and tired of war. I know I certainly am, as an American, and I know that I’m not alone in that endeavor. I think the problem is that it’s such a huge problem that it’s easy to feel isolated, and it’s easy to feel you can’t make a difference. But that isn’t true. Good, committed people together can make a really amazing and meaningful impact. The comments this morning about slavery are so true: it was just a small group of people—an incredibly small group of people—who decided that they didn’t want to have slaves anymore as part of that civilized moment. That movement grew and took time, but today we acknowledge fundamentally that slavery is a horrible thing and shouldn’t be permitted.

We live in a very dangerous time where the high watermarks of civilization are coming apart. We live in a time where torturers are allowed to walk free, without any sense of accountability. We live in a time where today, as we speak, there are civilizations—ancient civilizations—being destroyed by bombs and missiles without any sense of recourse, with blindness from the international community that’s supposed to protect them.

We have to have faith in the fundamental precept that the pen is mightier than the sword. That together, we can make our efforts known through law, through research, through the courthouses. We can do it: Motion by motion, complaint by complaint, summons after summons, we can make this happen. But it’s going to take a joint, concerted effort. It’s going to take the ability to work together, which is the fundamental basis of any great movement. But I think if we can do those points and agree on a high level strategy, I am very optimistic that the world will join this movement, because it’s time for it. It’s time to put war aside and live under an international community and an international regime where we can all live together in peace.

Thank you very much.


Comar to Speak at International Forum on Peace and Justice in Kuala Lumpur

Recently, our Facebook page featured a post about the Malaysian tribunal that convicted Bush and Blair of war crimes (including aggression) in 2012.  We’re excited to announce that Inder Comar, the lead counsel in Saleh v. Bush, will travel to the Malaysian capital next week to speak about the case at the Kuala Lumpur Foundation to Criminalize War‘s International Forum on Peace and Justice.

Mr. Comar joins prominent diplomats, professors, and legal advisors at the April 18 conference in Kuala Lumpur, including the Fourth Malaysian Prime Minister Tun Dr. Mahathir Mohamed and former UN Humanitarian Coordinator for Iraq Hans von Sponeck.

At the conference, Mr. Comar will discuss recent developments in the case, which is currently awaiting appellate briefing in the Ninth Circuit Court of Appeals, and its implications for international justice. Mr. Comar and the Witness Iraq team are grateful for this opportunity to bring international attention to this groundbreaking case.

Why an appeal must be filed in this case

The decision to appeal the district court order dismissing the Witness Iraq lawsuit and Ms. Saleh’s inquiry into the Iraq War was not made lightly.

A panel of international justices and attorneys at the Nuremberg Trials

A panel of international justices and attorneys at the Nuremberg Trials

After more than a year and half of effort, the prospect of an appeal that might end in the same outcome is, frankly, a daunting one.

After reviewing the case law and affirming that the Nuremberg Principles should apply in this matter, the necessity of an appeal became self-evident.

Nuremberg gives a court sufficient justification to examine the claims brought by Ms. Saleh and to investigate whether the conduct of government leaders in planning and waging the Iraq War was illegal under domestic and international law.

Whether a United States court will accept this invitation remains to be seen.

But other than the Chilcot Inquiry in the United Kingdom, there is no other meaningful effort today examining the legality of the Iraq War.

Even as Iraq descends into further chaos, and even as paramilitary groups such as the Islamic State gain strength, it is too easy to forget that the current bloodshed in Iraq is the bitter fruit of the poisonous tree that was the initial invasion.

We will brief these issues to the United States Court of Appeal for the Ninth Circuit and hope that it can be convinced that a judicial inquiry is finally warranted, and that Ms. Saleh’s claims for damages can proceed.

We must envision the world we want to live in and work hard every day to build that world.

It is possible to live in a world where warmaking is governed by law, and where leaders cannot invade other countries without the prospect of accountability for such decisions.

Such was the promise of the Nuremberg Trials themselves.

If Nuremberg is to mean anything, its prohibitions against international aggression must be acknowledged by US jurists and apply to US leaders.

This was the promise that American prosecutors gave to the international tribunal more than 60 years ago. We must keep that promise or else we will return to the world that existed before 1939 and the Second World War.

The notice of appeal can be found here.

Federal court gives “early Christmas present” to Bush, Cheney, Rumsfeld and others, immunizing them from civil inquiry regarding Iraq War

San Francisco, Calif. (December 22, 2014) – Late Friday, a federal judge dismissed a civil claim filed against George W. Bush and other high-ranking officials regarding their conduct in planning and waging the Iraq War, and immunized them from further proceedings.

“This is an early Christmas present to former Bush Administration officials from the federal court,” Inder Comar of Comar Law said. Comar brought the claim on behalf of an Iraqi refugee and single mother, Sundus Shaker Saleh. “This was a serious attempt to hold US leaders accountable under laws set down at the Nuremberg Trials in 1946. I am very disappointed at the outcome.”

The tribunal at Nuremberg, established in large part by the United States after World War II, declared international aggression the “supreme international crime” and convicted German leaders of waging illegal wars.

The case alleged that George W. Bush, Richard Cheney, Colin Powell, Condoleezza Rice, Donald Rumsfeld and Paul Wolfowitz committed aggression in planning and waging the Iraq War. Specifically, the lawsuit claimed that high-ranking Bush officials used the fear of 9/11 to mislead the American public into supporting a war against Iraq, and that they issued knowingly false statements that Iraq was in league with Al-Qaeda and had weapons of mass destruction, when none of those things were true.

“The decision guts Nuremberg,” Comar said. “Nuremberg said that domestic immunity was no defense to a claim of international aggression. This Court has said the opposite.”

The court’s ruling comes in the wake of the Senate report regarding the use of torture by the CIA during the Bush Administration. The Senate report confirmed that a false confession obtained from the torture of Ibn Shaykh al-Libi was cited by the Administration in support of the war.

Comar, a corporate attorney based out of Impact Hub San Francisco, primarily works with startups and venture funds. He took the case pro bono after learning about the plight of Iraqi refugees displaced through the Iraq War. Comar connected with Saleh through mutual colleagues in San Francisco.

Comar filed the initial complaint on March 13, 2013. While Comar recognizes the year-and-a-half-long effort was a long-shot, he remains steadfast. “The plaintiff will consider all her options, including an appeal. Judicial inquiry into possible wrong-doing that led to the Iraq War is warranted.”

In August 2013, Obama’s Department of Justice requested that the lawsuit be dismissed pursuant to the Westfall Act, a federal law that immunizes any government official from a civil lawsuit if that official was acting “within the scope of his office or employment.” Judge Jon S. Tigar, an Obama appointee, ruled that the defendants were shielded by the Westfall Act regardless of the allegations made in the Complaint.

December 19, 2014 Court Order

Senate Torture Report exposes additional crimes

The revelations from the Senate Torture Report have placed the potential crimes of the previous Administration in focus once more. The aggression against the people of Iraq and the torture committed  by the CIA — including torture of innocent people — did not have to happen. These were affirmative choices made by people in power,  done to exploit 9/11 for their own purposes.

We have identified at least two different laws that would support indictments against those who committed torture in the last decade: the War Crimes Act (18 U.S.C. § 2441) and the Convention Against Torture implementing legislation (18 U.S.C. § 2340A). We have drafted a public memorandum discussing these laws in an effort to spur debate on the issue of potential wrongdoing.

As more and more facts are revealed, as greater consensus emerges regarding what happened during those dark days after 9/11 — just today, Senator Carl Levin, reiterated that the Bush Administration misled the country about the links between Iraq and Al Qaeda — there will be a greater push from both the public, the international community, and almost certainly members of government regarding the need for accountability. Aggression was not the only crime committed at Nuremberg: the grotesque excesses of the Nazis against their victims gave birth to modern jurisprudence regarding crimes against humanity and torture as well.

The release of the torture report, combined with the Iraq War, make clear that what is now at stake is the legacy of Nuremberg itself.

December 12, 2014 Public Memorandum

Help rescind Save The Children’s award to Tony Blair

While we await the order from the Court on immunity, we were outraged to learn last week that Save the Children had provided a “Global Legacy Award” to Tony Blair.

We weren’t alone: more than 120,000 people have signed an online petition asking for Save the Children to rescind the Award.

In support of the petition, Counsel Inder Comar drafted this letter and asked Save the Children to do the right thing.

December 5, 2014 Letter to Save the Children

Update – November 13 hearing was canceled!

We wish we had better news, but Judge Tigar canceled the November 13, 2014 oral argument and hearing on the Defendants’ motion to dismiss, and Ms. Saleh’s request for an evidentiary hearing. This is the second time this year that the Court has canceled an oral argument. The order vacating the hearing is attached to this blog post.

Based on the court order, the trial court will, at this point, ask for additional briefing, or it will — after a year and a half — issue its final court order as to whether ex President Bush and other high officials violated the Nuremberg principles, and whether they are immune from a lawsuit alleging as such.

November 3, 2014 Order Canceling Oral Argument

Litigating the US Invasion of Iraq