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Court Documents

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

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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.

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

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

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

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

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

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

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

Court Documents

DOJ Opposes Submission of Chilcot Report to Ninth Circuit

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

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

Defendants Bush and Rumsfeld shake hands

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

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

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

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

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

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

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

Opposition to Motion for Judicial Notice

Commentary

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.