Saleh v. Bush

Saleh v. Bush is a 2013 class action lawsuit filed against members of the George W. Bush administration for their alleged involvement in premeditating and carrying out the Iraq War. The suit is being brought to court by Inder Comar of Comar Law, against former president George W. Bush, former vice president Dick Cheney, former secretary of defense Donald Rumsfeld, former national security adviser and secretary of state Condoleezza Rice, former secretary of state Colin Powell, and former deputy secretary of defense and president of the World Bank Paul Wolfowitz. It was dismissed December 2014, but the plaintiffs have appealed that decision.

Lead plaintiff Sundus Shaker Saleh alleges that the defendants planned the war as early as 1998, capitalizing on the September 11 attacks in 2001 to ramp up support for the invasion through fear tactics and intentional misinformation. The suit argues that the true purpose of the subsequent war in 2003 was to enact regime change in Iraq, and as such the war was not carried out in self defense, nor with the authorization of the UN Security Council or other relevant international treaties.

As such, the defendants are accused of conspiring and committing the crime of aggression against the Iraqi people, a violation of the Nuremberg Principles on crimes against peace.

If brought to court, this case will mark the first time since the Nuremberg Trials that any government officials have been charged with the crime of aggressive war, and the first time U.S. officials have been charged with any of the Nuremberg crimes against peace.

Nuremberg precedent

Post World War II, the Nuremberg Tribunal was established by the Allied forces to prosecute prominent members of the leadership of Nazi Germany. Among other key decisions, the Tribunal defined the crime of aggression, war crimes, and crimes against humanity as international crimes.

Defining the crime of aggression

Nuremberg Principle VI(a) defines the following as crimes against peace that are punishable by international law:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

A war of aggression is considered to be any conflict waged for reasons other than self–defense. Principle VI goes on to define (b) war crimes and (c) crimes against humanity.

The Supreme Crime

In addition to outlawing the act of waging aggressive war, Principle VI(a) identifies premeditation as an international crime, in itself punishable under international law. The Nuremberg Tribunal further distinguished the crime of aggression as "the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

Significance of Saleh v. Bush to Nuremberg

A precedent of universality was identified as a central goal of the Nuremberg Trials by Chief U.S. prosecutor Robert H. Jackson. That is, leaders are held accountable if they violate international law, regardless of position or country. Jackson said, "If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them. ... We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well."

Despite these goals, no government officials have been charged with the crime of aggression since the Nuremberg Trials. Noam Chomsky said, “the poisoned chalice has never approached the lips of the powerful”.

If Saleh v. Bush goes to court, it will mark the first such case since Nuremberg, as well as the first time officials from the United States have been charged with any of the Nuremberg crimes against peace.

Evidence cited

Evidence of PNAC advocacy of regime change in Iraq

The Saleh v. Bush complaint argues that Defendants Cheney, Rumsfeld and Wolfowitz were publicly advocating for invasion and regime change in Iraq since 1998, through individual actions as well as through their involvement in the Neoconservative think tank Project for a New American Century (PNAC). The complaint cites evidence of this advocacy, including the following:

• Several documents produced by PNAC between 1997 and 2000 urging the overthrow of then Iraqi president Saddam Hussein
• A letter signed in 1998 by Defendants Donald Rumsfeld and Paul Wolfowitz to then President Bill Clinton requesting implementation of "a strategy for removing Saddam's regime from power", which should "become the aim of American foreign policy". The letter argued that this strategy should include "a willingness to undertake military action", and that "American policy cannot continue to be crippled by a misguided insistence on unanimity in the UN Security Council"
• A letter signed in 1998 by Defendants Donald Rumsfeld and Paul Wolfowitz to then Speaker of the House Newt Gingrich and Senate Majority Leader Trent Lott recommending the use of “U.S. and allied military power ... to help remove Saddam from power"
• Testimony given by Defendant Paul Wolfowitz in 1998 before the House National Security Committee on Iraq advocating "liberating the Iraqi people from Saddam's tyrannical grasp and free Iraq's neighbors from Saddam's murderous threats", and form a provisional government to "control the largest oil field in Iraq".

See also: PNAC calls for regime change in Iraq during Clinton years

Evidence of use of 9/11 attacks

The Saleh v. Bush complaint argues that as soon as the 9/11 attacks occurred, defendants Rumsfeld and Wolfowitz convinced the rest of the defendants to join in an effort to use the event as an opportunity to implement the planned Iraq invasion, despite the lack of evidence linking the attacks to Saddam Hussein. Some of the evidence cited by the complaint includes the following:

• A report by British journalist John Kampfner that the day of the attacks, Defendants Donald Rumsfeld and Paul Wolfowitz advocated openly for invading Iraq, despite the fact that the hijackers were Saudi Arabian, and based out of Afghanistan. According to Kampfner, "from that moment on, [Defendants Rumsfeld and Wolfowitz] used every available opportunity to press the case [for invasion]"
• Statements by Richard A. Clarke, the former National Coordinator for Security, Infrastructure Protection and Counter-terrorism that Defendants Wolfowitz, Rumsfeld and Bush aimed to use the 9/11 attacks as an excuse to invade Iraq
• A conversation between Defendant George W. Bush and Richard A. Clarke on September 12, 2001, where Defendant Bush said "I want you, as soon as you can, to go back over everything, everything. See if Saddam did this. See if he's linked in any way." Clarke responded, "But, Mr. President, Al–Qaeda did this", to which Defendant Bush responded, "I know, I know, but – see if Saddam was involved. Just look. I want to know any shred–". Clarke answered "But you know, we have looked several times for state sponsorship of Al Qaeda and not found any real linkages to Iraq. Iran plays a little, as does Pakistan, and Saudi Arabia, Yemen." Defendant Bush responded "Look into Iraq, Saddam."
• Statements by Richard A. Clarke that the Bush Administration was so focused on the plan to invade Iraq before the 9/11 attacks, they failed to heed warnings of a major Al–Qaeda attack in the works, including a, August 2001 CIA briefing to Defendant Bush called "Bin Ladin [sic] Determined To Strike US".

See also: PNAC Post-9/11 call for regime change in Iraq

Evidence "fixing" intelligence around invasion

The Saleh v. Bush complaint cites the Downing Street Memo, a leaked secret memorandum detailing a July 2002 meeting of high-ranking British officials on the subject of intelligence on Iraq. The suit argues that the memo shows the defendants planning to invade Iraq, and to manufacture false intelligence around the invasion, including the following:

• Comments from former head of the Secret Intelligence Service Sir Richard Dearlove on U.S. attitudes toward Iraq: "Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD [weapon(s) of mass destruction]. But the intelligence and facts were being fixed around the policy."
• Statements from former foreign secretary Jack Straw that Defendant Bush had "made up his mind" to invade, despite that "[T]he case was thin. Saddam was not threatening his neighbours, and his WMD [weapons of mass destruction] capability was less than that of Libya, North Korea, or Iran."
• Confirmation from then attorney general of the UK Lord Peter Henry Goldsmith that an invasion could not be legally justified: "[T]he desire for regime change was not a legal base for military action. There were three possible legal bases: self–defence, humanitarian intervention, or UN [Security Counsel] authorisation. The first and second could not be the base in this case. Relying on UNSCR 1205 of three years ago would be difficult. The situation might of course change."

See also: Downing Street Memo

Evidence of misinformation and scare campaign to manufacture public support for invasion

The Saleh v. Bush complaint recalls the creation of the White House Iraq Group (WHIG), a propaganda arm of the administration established for the sole purpose of convincing the public to support an Iraq invasion. Defendant Rice was among the members. Some of the evidence cited by the complaint includes the following:

• The "smoking gun/mushroom cloud" phrase proposed at a 2002 WHIG meeting as a tool to communicate the supposed nuclear threat posed by Saddam Hussein
• Statements from anonymous White House officials to the New York Times in 2002 that the Bush Administration was strategizing to "persuade the public, the Congress and the allies of the need to confront the threat from Saddam Hussein." Then White House Chief of Staff Andrew Card, Jr. also told the New York Times that the Bush Administration postponed the campaign until after Labor Day because "From a marketing point of view you don't introduce new products in August." The centerpiece of the campaign was also reported by the New York Times to be Defendant Bush's “speech on September 11 to help move Americans towards support of action against Iraq, which could come early next year.”
• An August 2002 article in the Washington Post reporting that in the run–up to the war, the defendants participated in a "pattern" of "allegations depicting Iraq's nuclear weapons program as more active, more certain and more imminent in its threat than the data they had would support."
• Remarks by Defendant Rice on September 8, 2002 on CNN's Late Edition that Saddam Hussein was "actively pursuing a nuclear weapon." "There will always be some uncertainty about how quickly he can acquire nuclear weapons but we don't want the smoking gun to be a mushroom cloud."
• A 2008 memoir by former Bush aide and press secretary Scott McClellan confirming that the defendants carried out a "political propaganda campaign" for the purpose of "manipulating sources of public opinion."

See also: White House Iraq Group

Evidence of false linking of Al–Qaeda to Iraq

The Saleh v. Bush complaint alleges that the defendants participated in a systematic pattern of deception to convince the American public of cooperation between Iraq and Al–Qaeda, despite the fact that no proof of such a link has ever been found. This deception was carried out as a means of manufacturing public support for the invasion of Iraq. Some of the evidence cited by the complaint includes the following:

• Speeches by Defendant Bush in 2002 claiming connections between Iraq and Al–Qaeda, despite the fact that ten days after the September 11 attacks, his daily brief confirmed that there was no evidence implicating Iraq, and scant evidence of collaboration between Iraq and Al–Qaeda. For example, in an October 7 speech he said, "Iraq and Al–Qaeda have had high–level contacts that go back a decade. Some Al–Qaeda leaders who fled Afghanistan went to Iraq. ... We've learned that Iraq has trained Al-Qaeda members in bomb-making and poisons and deadly gases. And we know that after September 11 Saddam Hussein's regime gleefully celebrated the terrorist attacks on America." Defendant Bush also referred to a supposed group of "nuclear mujahideen ... nuclear holy warriors" controlled by Saddam Hussein. On October 14: "[Saddam Hussein] has had connections with Al–Qaeda. This is a man who, in my judgement, would like to use Al–Qaeda as a forward army. And this is a man that we must deal with for the sake of peace, for the sake of our children's peace."
• A 2002 Defense Intelligence Agency report confirming that Bush Administration officials were informed that the intelligence source linking Al–Qaeda and Iraq was likely illegitimate, concluding that "Saddam’s regime is intensely secular and is wary of Islamic revolutionary movements. Moreover, Baghdad is unlikely to provide assistance to a group it cannot control.”
• Allegations made by Defendant Cheney on two separate occasions (December 9, 2001 and in September 2003) of a meeting between an Iraqi intelligence officer and one of the September 11 hijackers, that was later found to have never occurred. Cheney retracted the statement in 2006.
• A February 2003 speech given by Defendant Powell to the UN Security Council, alleging operational collaboration between Iraq and Al–Qaeda. The speech is considered a crucial component of the administration's success in winning support for the invasion. Powell alleged that Iraq "harbors a deadly terrorist network headed by Abu Musab Al-Zarqawi, an associated collaborator of Osama bin Laden and his al-Qaeda lieutenants.” He said Saddam Hussein was “more willing to assist al-Qaida after the 1998 bombings of [US] embassies in Kenya and Tanzania”, and that “From the late 1990s until 2001, the Iraqi Embassy in Pakistan played the role of liaison to the Al Qaeda organization.” In 2005, Defendant Powell stated he felt "terrible" about this speech, which he considered a "blot" on his reputation. Regarding the alleged link between Iraq and Al–Qaeda, Powell admitted to being dishonest, “I have never seen a connection . . . I can’t think otherwise because I’d never seen evidence to suggest there was one.”

Parties

Lead plaintiff: Sundus Shaker Saleh

The lead plaintiff in the Saleh v. Bush suit is Iraqi civilian Sundus Shaker Saleh, a single mother of four. Currently a refugee in Jordan, Saleh alleges the violence resulting from the 2003 U.S. invasion forced her to flee with her children in 2005. The suit is being filed by Saleh on behalf of herself and other Iraqis similarly affected by the war.

Saleh is being represented by Inder Comar, an American civil rights lawyer, and legal director at Comar Law.

Defendants

Saleh v. Bush is being brought to court against 6 members of the George W. Bush administration: former president George W. Bush, former vice president Dick Cheney, former secretary of defense Donald Rumsfeld, former national security adviser and secretary of state Condoleezza Rice, former secretary of state Colin Powell, and former deputy secretary of defense and president of the World Bank Paul Wolfowitz.

The defendants are being represented by the U.S. Department of Justice under President Barack Obama.

Obama Administration attempts to protect and immunize the defendants

The Obama Administration's Department of Justice has sought to protect the defendants twice to date, with a motion to dismiss the Saleh v. Bush charge on August 20, 2013 and another one on November 29, 2013. The DOJ cites the Westfall Act, claiming that the defendants were acting within their scope of employment when planning and waging the Iraq War, and therefore can not be held individually accountable for the harm caused. The Westfall Act rules that harm done within the scope of employment is the responsibility of the employer. In this case the employer is the United States government, which is protected by sovereign immunity, the legal doctrine that a sovereign state can not commit a crime and is immune from prosecution.

The Saleh v. Bush suit holds that because of the evidence of premeditation as early as 1998, before the defendants held their offices, said defendants could not have been acting under the scope of employment, and thus sovereign immunity is not applicable.

Chronology of the lawsuit

On May 19, 2014, the Northern District of California dismissed the case with leave to amend. The Court held that Saleh had failed to provide evidence of any of the Defendants acting within the scope of their employment. The Court gave the plaintiff 20 days to address these issues or else the lawsuit would be dismissed with prejudice.

On June 8, 2014, Saleh filed her Second Amended Complaint. On June 9, 2014, Saleh filed a request for an evidentiary hearing, citing to the court order and requesting that the court permit her an opportunity to provide the evidence it wanted in a court hearing.

On August 15, 2014 The United States will have an ability to respond to the second amended complaint. A hearing date had been set for September 11, 2014. On August 18, 2014, the Northern District of California reset the hearing date for November 13, 2014. The hearing date was canceled on November 3, 2014. On 19 December 2014, the lawsuit was dismissed with prejudice. A notice of appeal with the United States Court of Appeal for the Ninth Circuit was filed on January 16, 2015.

On May 27, 2015, Saleh filed a notice of appeal with the United States Court of Appeal for the Ninth Circuit. A week later, on June 2, a group of international lawyers (including former Attorney General Ramsey Clark) filed an amicus brief in support of Ms. Saleh's case.

On July 22, 2016, Saleh filed a motion for judicial notice, submitting excerpts from the Chilcot Report in support of her claims.

The Ninth Circuit judges Susan Graber and Andrew Hurwitz, plus visiting judge Richard Boulware, heard oral arguments on December 12, 2016. The oral arguments lasted about 32 minutes.

External links

• Official case website: http://witnessiraq.com/
• A copy of the Appellate Opening Brief before the Ninth Circuit Court of Appeals (filed May 27, 2015): pdf