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.
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.
SALEH V BUSH AND PRECEDENT FOR THE CRIME OF AGGRESSION
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.
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.
WHAT’S NEXT? CONCRETE RECOMMENDATIONS FOR ACTION
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 TheConcept 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).
HOW CAN INTERNATIONAL ORGANIZATIONS HELP?
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.
CONCLUSION: “ENEMIES OF CIVILIZATION” AND THE FUTURE OF EFFORTS TO CRIMINALIZE WAR
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.
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.
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.
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.
The theory against the defendants in the Saleh v. Bush lawsuit — which include George W. Bush, Richard Cheney, Colin Powell, Condoleezza Rice, Donald Rumsfeld, and Paul Wolfowitz — is that these individuals committed the “crime of aggression.”
What is the crime of aggression?
The crime of aggression was the chief crime prosecuted against Nazi war criminals at the Nuremberg Trials held at the end of World War II. While Nuremberg is remembered as the tribunal which prosecuted the Nazis for war crimes and crimes against humanity, the International Military Tribunal also held that the Nazis broke the law by planning and waging wars in violation of international treaty.
Under the rule of Nuremberg, waging a war of aggression is the “supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” (Emphasis added.)
In the Saleh v. Bush complaint, the plaintiff Sundus Shaker Saleh alleges that the defendants in this case planned and waged a war in violation of international law and thus committed the crime of aggression as defined by Nuremberg. Ms. Saleh alleges that the defendants began planning a war against Iraq as early as 1998 through the non-profit known as “The Project for the New American Century.” Ms. Saleh alleges that once in power, the defendants used 9/11 as an excuse to scare and mislead the American public into supporting a war against Iraq. Finally, the plaintiff alleges that the war was executed without proper legal authorization, constituting another act of aggression against the people of Iraq.
Ms. Saleh has filed suit against members of the Bush Administration under the Alien Tort Statute, which permits a non-US citizen to file suit for any tort “committed in violation of the law of nations or a treaty of the United States.” Thus, Ms. Saleh argues that she has the right to bring the Bush Administration to court as they violated the rule of Nuremberg, international law and international treaty in planning and waging the Iraq War.
[June 8, 2015 update: Shortly after commencing the Saleh v. Bush lawsuit, the Project for the New American Century website was “Suspended” – if you go there today, you receive an empty screenshot. We have updated this post to link to the webpage as archived by Wayback Machine at the Archive.Org.]
PNAC’s public advocacy for a US invasion of Iraq — including statements signed by prominent Bush-era figures — as early as 1998, is troubling evidence that the Iraq War was planned and executed in a manner that is illegal under international law.
Incredibly, few people know about PNAC’s role in planning the invasion — or the fact that people associated with PNAC include key Bush Administration officials such as Richard Cheney, Donald Rumsfeld and Paul Wolfowitz.
In 1997, Richard Cheney, Donald Rumsfeld and Paul Wolfowitz, through PNAC, signed an open letter in which they advocated for a significant “increase [in] defense spending” and a “need to accept responsibility for America’s unique role in preserving and extending an international order friendly to our security, our prosperity, and our principles.”
Military action had to happen regardless of rules – even UN rules. According to Rumsfeld and Wolfowitz, “American policy cannot continue to be crippled by a misguided insistence on unanimity in the UN Security Council.”
They concluded, “We stand ready to offer our full support in this difficult but necessary endeavor.”
On September 20, 2011, a mere 9 days after the 9/11 attacks, PNAC members continued to advocate for war against Iraq. In an open letter to President Bush, PNAC stated, “[E]ven if evidence does not link Iraq directly to the attack, any strategy aiming at the eradication of terrorism and its sponsors must include a determined effort to remove Saddam Hussein from power in Iraq.”
By then, PNAC members and supporters — Dick Cheney, Donald Rumsfeld and Paul Wolfowitz — were in key government positions in the Bush Administration.
The planning and executing of a war under international law without proper legal authorization constitutes the crime of aggression.