CrossTalk: Justice Deficit
RT 
Published on Sep 30, 2013
United States Department of Justice requested that George W. Bush, Richard Cheney, Donald Rumsfeld, Colin Powell, Condoleezza Rice and Paul Wolfowitz be granted procedural immunity in a case alleging that they planned and waged the Iraq War in violation of international law. Does this imply they did breach the law? Why does Obama want to shield the ex-President from prosecution? And why aren't Bush & Co. held accountable for the Iraq disaster?
CrossTalking with Inder Comar and Ed Krayewski.
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Why an Iraqi single mom and a tech lawyer think they can prove the Iraq War was a “crime of aggression” under U.S. law.
posted Aug 16, 2013
Sundus Shaker Saleh, pictured at right, with her lawyer, Inder Comar. Photo by Global Exchange.
George
W. Bush keeps a low profile these days, making the rounds on the public
speaking circuit, engaging in a bit of philanthropy here and there,
occasionally sharing his dog paintings or offering an unsolicited
opinion on the immigration debate or national security.
The case was filed on March 13, 2013, and the defendants have all been served notice to appear.
Given
his role in the current media landscape, it may be easy to forget that
just 10 years ago he led an invasion of a foreign country that many in
the international community saw as criminal.
Sundus Shaker Saleh,
an Iraqi single mother of three, has not forgotten. The violence and
chaos that engulfed Iraq following the U.S.-led invasion of 2003 had
tragic consequences for her family and ultimately forced her to flee her
homeland for an uncertain future. She has left Iraq, but she is
determined to make sure the world hears her story and that someone is
held accountable.
Saleh is the lead plaintiff in a class action
lawsuit targeting six key members of the Bush Administration: George W.
Bush, Richard Cheney, Donald Rumsfeld, Condoleezza Rice, Colin Powell,
and Paul Wolfowitz. In
Saleh v. Bush, she alleges that the Iraq
War was not conducted in self-defense, did not have the appropriate
authorization by the United Nations, and therefore constituted a “crime
of aggression” under international law—a designation first set down in
the Nuremberg Trials after World War II. The aim of the suit is simple:
to achieve justice for Iraqis, and to show that no one, not even the
president of the United States, is above the law.
The case is being brought to trial by Inder Comar of
Comar Law,
a firm based in San Francisco. The majority of cases Comar takes
involve providing legal support to private companies, primarily for the
tech industry. He is measured and deliberate, perhaps not the long
haired, vaguely out-of-touch wearer of hemp suits some might picture
when imagining a human rights lawyer pushing for prosecution of U.S.
government officials.
This summer, Saleh met with Comar at her home in Amman, Jordan, to discuss the upcoming trial.
Saleh
related her story through a translator to Comar, who had traveled
halfway around the world to hear her story firsthand. Saleh was a
gracious host, according to Comar, pointing out the paintings she'd
crafted and beaming over her children. She was warm, open, and quick to
laugh. Her story, however, was rife with darkness.
Prior to the
arrival of U.S. forces, Saleh said, Iraq was safe. People slept with
their doors open at night. There were no militias, no checkpoints, no
threats. All of that came to a halt following the U.S.-led invasion.
Airstrikes damaged or destroyed vital infrastructure including highways,
bridges, and wastewater treatment facilities. Diseases like typhus
became commonplace. The swift collapse of a functioning government
created an environment ripe for internecine warfare. Saleh’s twin
brothers were both shot by militia members, and she no longer felt safe
in her own home. So in 2005, Saleh fled Iraq. She was not alone.
According to the United Nations High Commissioner for Refugees, over 2
million people left the country, and over 2.7 million were internally
displaced, including up to 40 percent of the Iraqi middle class.
To
seek legal redress, Comar Law is invoking the Alien Tort Statute, a law
passed in 1789 that permits a non-U.S. national the ability to sue in
federal court for injuries “committed in violation of the law of nations
or a treaty of the United States.” The case was filed on March 13,
2013, with the U.S. District Court in Northern Calif., and the
defendants have all been served notice to appear. Just like any other
legal proceeding, there will be a great deal of back and forth before
the hearing, which is scheduled to take place sometime in early 2014.
A tough case to make
Paul
Stephan teaches law at the University of Virginia and has served as a
consultant to the Department of State on matters of international law.
In his opinion, Comar's lawsuit against Bush administration officials is
unlikely to succeed.
Many judges would view the ramifications of the invasion of Iraq not as a matter of law, but of politics.
For
one, Stephan says, it’s difficult to sue a U.S. employee acting under
the “scope of employment.” The Westfall Act of 1988 permits the United
States as an entity to substitute itself in for individuals who were
acting in their "scope of employment" for the case at issue.
The Westfall Act was enacted by Congress to supersede the Supreme Court's decision in
Westfall v. Erwin,
a case involving a government employee, William Erwin, who was burned
by exposure to toxic soda ash at an Army depot and then sued the depot
supervisors. The Court’s ruling slightly modified the interpretation of
law to open up government employees to greater legal liability for their
actions. Congress immediately responded with the Westfall Act, which
granted "absolute immunity" to government employees for any actions
taken within the scope of their employment.
Precedent suggests that Stephan may be right. The district court of the District of Columbia
dismissed a case by the ACLU of Northern California
against Defense Secretary Donald Rumsfeld and nine other senior
military leaders in 2007 on the grounds that these employees were acting
within the scope of their employment and were therefore immune from
liability under the Westfall Act.
The suit,
Ali v. Rumsfeld, was brought on behalf of nine men subjected to torture and abuse under Rumsfeld's command, with the
ACLU arguing that the Constitution and international law prohibit
torture and require commanding officers to report violations of the law.
The ACLU further claimed that direct orders from Rumsfeld, as well as
reports from detention facilities in Iraq and Afghanistan, proved that
Rumsfeld and the nine other defendants were well aware of and condoned
the ongoing torture.
The second issue that Stephan points out is
that the crimes in question didn’t take place in the United States. That
makes it unlikely the courts will recognize the validity of the claim.
Thirdly,
there’s the “political question.” Courts aren’t open to ruling on
matters of a political nature, Stephan says. This doctrine of U.S.
Constitutional law has its roots in the case of
Marbury v. Madison,
in which Supreme Court Chief Justice John Marshall drew a dividing line
between matters over which the courts would have jurisdiction and
matters best left to the legislative and executive branches of
government. Many judges would view the ramifications of the invasion of
Iraq not as a matter of law, but of politics.
“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,” Stephan said. “No federal court ever has recognized
such a claim.”
Taking a deeper look
But Comar is
optimistic that these hurdles can be overcome. The issue of whether or
not Bush, Cheney, and the others will be found to have acted in an
official capacity isn’t open and shut.
"Ms.
Saleh alleges that these defendants entered into government in order to
execute a pre-existing plan to overthrow the Hussein regime."
According
to Comar, part of the planning for the invasion happened within the
United States, before these officials took office. Multiple letters and
position papers emanating from the nonprofit think tank Project for a
New American Century, or PNAC, indicate a long-term interest in regime
change in Iraq. An open letter written in 1998 to then-president Clinton
signed by Wolfowitz and Rumsfeld called for the removal of Saddam
Hussein using military power. PNAC was also responsible for drafting and
guiding the passage of the Iraqi Liberation Act in 1998, which
authorized military support for opposition to Saddam Hussein.
Then,
in 2000, Wolfowitz was a signatory to the 90-page report issued by PNAC
titled “Rebuilding America's Defenses: Strategies, Forces, and
Resources For a New Century,” which calls for, among other things,
global domination through force of arms. The document tellingly hints at
the larger geopolitical justification for war with Iraq, stating that
"while the unresolved conflict in Iraq provides the immediate
justification [for U.S. military presence], the need for a substantial
American force presence in the [Persian] Gulf transcends the issue of
the regime of
Saddam Hussein."
Those
documents suggest that, in order to show that these officials were
acting in capacity as government employees, the United States needs to
prove that the sum of their actions took place entirely within office.
Since the officials participated in these actions before they took
office, Comar claims, they clearly cannot have been acting in their
scope of employment.
Then there's the political question, which
Comar concedes is an often-nebulous doctrine with no clear limits. But
that doesn’t mean that the crime of aggression necessarily qualifies as a
political question.
Though low-ranking soldiers were prosecuted for torture in Iraq, none of the policy architects were ever held accountable.
“The
legality of a war under international law was exactly the type of legal
question that the Nuremberg court adjudicated,” Comar says. “We believe
that aggression as a tort is actionable under the Alien Tort Statute.
It is not a generic international law claim but a bedrock norm of
international behavior in the same manner as slavery, genocide or
torture, which are all claims that can be made under the Alien Tort
Statute.”
Comar is confident that the courts will hear the case
but is clear-headed about the prospects for conviction. He says that
failure to achieve a multimillion-dollar settlement would not mean
failure overall. A trial requires the gathering of evidence and provides
a record for posterity.
Furthermore, Comar says, the judiciary is
likely the last place people like Sundus Shaker Saleh can turn. It is
highly unlikely that any president would ever investigate a past
administration in the way sought by the suit, since the executive isn't
keen to open the gates for further scrutiny into its actions. Indeed,
the Obama administration has expanded many Bush programs, including the
use of drone strikes and domestic surveillance.
Since neither the
legislative nor the executive branch have attempted to investigate
whether the Bush Administration officials are guilty of war crimes, the
last remaining branch through which to seek redress is the judiciary.
Pursuing the issue here, Comar believes, will force the issue back into
the public sphere.
“Our law recognizes that the actions of every
person in this country—even a president—is subject to judicial review
before an impartial judge," Comar says. He continues:
This
is a concept that extends back to the Magna Carta, when English barons
put restraints on their king in order to protect their rights and
privileges. In this case, Ms. Saleh alleges that these defendants
entered into government in order to execute a pre-existing plan to
overthrow the Hussein regime—a plan that has now led to the deaths of
hundreds of thousands of Iraqis and U.S. servicemen and women, untold
misery for millions, and chaos that continues to plague that country to
the present day. This is the very behavior that was outlawed and
declared criminal by the Nuremberg Tribunal.
It is unusual in the
United States for high government officials to face legal consequences
for their actions. Though low-ranking soldiers were prosecuted for
torture in Iraq, none of the policy architects were ever held
accountable.
Regardless of the resolution of
Saleh v. Bush,
the case sets an important precedent toward rebuilding a system of laws
that apply equally to everyone, even if their alleged crimes were
committed in the Oval Office.
Corey Hill wrote this article for
YES! Magazine,
a national, nonprofit media organization that fuses powerful ideas and
practical actions. He is the membership and outreach coordinator at
Global Exchange. Follow Corey on Twitter at
@Newschill.
YES! Magazine. This work is licensed under a
Creative Commons License
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