August 22, 2013
The United States Department of Justice has requested that former President George W. Bush and the highest figures in his administration receive full exemption from being tried for the Iraq War, which the DoJ says was in line with international law.
Apart from Bush, the names listed in the paper the DoJ filed on
Tuesday are former Vice President Richard Cheney, former
Secretary of Defense Donald Rumsfeld, retired four-star General
Colin Powell, former Secretary of State, Condoleezza Rice and
former Deputy Secretary of Defense and President of the World
Bank, Paul Wolfowitz.
Sundus Saleh, an Iraqi single mother of three who became a
refugee, filed a complaint in March in the San Francisco federal
court, claiming that the war in her country can be judged as a
'crime of aggression’, according to the same legal standards that
the Nuremberg Tribunal used for convicting Nazi war criminals of
World War II.
Saleh is the lead plaintiff in this class action lawsuit.
The reason for the decision is connected with the 'Westfall Act’
certification. The 1988 law gives the Attorney General the power
to personally decide whether the United States is actually a
defendant in the case. This in turn allows the granting of
absolute immunity to politicians for actions carried out while in
the government’s employ.
Inder Comar of Comar Law has agreed to take the case. The
San-Francisco-based firm normally specializes in support to
private companies, particularly those in the tech industry. Comar
met with Saleh at her home in Jordan to discuss the case.
Chief counsel Comar wrote on the War Is a Crime website
explaining that, "The DoJ claims that in planning and waging
the Iraq War, ex-President Bush and key members of his
Administration were acting within the legitimate scope of their
employment and are thus immune from suit."
The lawsuit filed by Saleh says that Cheney, Rumsfeld and
Wolfowitz orchestrated the Iraq War in 1998 as part of their
involvement with the 'Project for the New American Century’, a
Washington DC-based non-profit organization that pushed for the
overthrow of Iraq’s former leader, Saddam Hussein.
Salleh then alleges that the tragedy of September 11, 2001, was
pitched to other members of the Bush cabinet as the perfect excuse
to scare the American public into supporting the war in Iraq. The
lawsuit also claims that the United States failed to obtain United
Nations approval for the invasion, making it an illegal and
aggressive act of war.
According to Corey Hill, who is a member and outreach coordinator
for Global Exchange, an international human rights organization,
Comar Law is invoking something called the Alien Tort Statute,
which is a 1789 law that permits a foreign national to sue the US
federal court for injuries "committed
in violation of the law of nations or a treaty of the United
States." Hill explained this in his article for YES!
Magazine, for which he also writes.
All the defendants in the case have been summoned to appear in
accordance with the usual legal proceedings. The trial is expected
to start in early 2014.
There are, however, several problems that could arise with the
allegations. As Paul Stephen, who teaches law at the University of
Virginia and is former international law consultant for the
Department of State told YES! Magazine, that it would be difficult
to sue a government employee for acting "under
the scope of employment" in this case, because of the
modified nature of the Westfall Act, giving officials more scope
The second problem may arise from the fact that their actions did
not take place on US soil, making it difficult to validate the
And lastly, "courts
aren’t open to ruling on matters of a political nature", Hill
said in reference to a doctrine in US Constitutional Law that
separates clear-cut court cases with those better left to the
legislative and executive branches of the government. This doctrine
then means that the invasion of Iraq is a political case – not a
"If the expectation is that a federal court will declare that the
invasion, although duly authorized by Congress, violated
international law and thus violates U.S. law, I would respond
that we walked up and down that hill with respect to Vietnam...
No federal court ever has recognized such a claim," Hill
But Comar is optimistic in so far that in order for the Westfall
Act to work in this case, the US government would have to prove
that the act of preparing the invasion through a non-profit
organization took place within office. But since that was not the
case, the law cannot be invoked here. He further explained to Hill
that separating a political matter from a purely legal one will
also not be easy for the US government, as it may often be a very
blurry line. Comar expanded on this position to the 'War Is a
"The good news is that while we were disappointed with the
certification, we were prepared for it," he said. "We do not see
how a Westfall Act certification is appropriate given that Ms.
Saleh alleges that the conduct at issue began prior to these
defendants even entering into office. I think the Nuremberg
prosecutors, particularly American Chief Prosecutor Robert
Jackson, would be surprised to learn that planning a war of
aggression at a private non-profit, misleading a fearful public,
and foregoing proper legal authorization somehow constitute
lawful employment duties for the American president and his or