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.
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.
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.
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.
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:
President Bush decided at the end of 2001 to pursue a policy of regime change in Iraq.
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.”
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.
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:
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.
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.
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.”
Lord Goldsmith recognised that there was a possibility of a legal challenge
Underlying statements and facts relied on by 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.”
“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.”
“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.”
“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).
“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)
“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
“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
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.
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.
In the latest round of court papers in Saleh v. Bush, Case No. 3:13-cv-1124 JST (N.D. Cal. Mar. 13, 2013), the United States has argued that the holdings from the Nuremberg Tribunal have “neither estoppel nor preclusive effect” and are “irrelevant” to the question of whether US officials are immune from suit based on allegations of aggression.
The United States continues to maintain that former Bush Administration officials are subject to dismissal based on a domestic law, the Westfall Act, that shields government officials from civil lawsuits for activities undertaken during the scope of an official’s employment.
Saleh argues that defendants Bush, Cheney, Powell, Rice, Rumsfeld and Wolfowitz acted outside the scope of their authority in planning and waging the Iraq War, which she contents was done in violation of US and international law. Specifically, she contends that these individuals committed aggression against Iraq, which was outlawed by the International Military Tribunal at Nuremberg, Germany, over 60 years ago.
The Court has also reset the hearing date from September 11, 2014, to November 13, 2014 in the Northern District of California.