Saleh v. Bush
Sundus Shaker Saleh (right) with her lawyer, Inder Comar (left).
|Date||13 March 2013 - 10 February 2017|
|Court||United States District Court Northern District of California|
|Plaintiffs||Sundus Shaker Saleh|
|Defendants||George W. Bush, Dick Cheney, Donald Rumsfeld, Condoleezza Rice, Colin Powell, Paul Wolfowitz|
|Description||A legal claim that the Iraq war was an illegal act of aggression, dismissed in 2017 by the Westfall Act since it was carried out by US government employees within the scope of their employment.|
Saleh v. Bush was a legal case by Sundus Shaker Saleh, who challenged the legality of the war against Iraq. Supported pro bono by Inder Comar of Comar Law, Saleh charged that the war was planned as early as 1998, and capitalized on 9-11 attacks to ramp up support for the invasion through fear tactics and intentional misinformation. The suit argued 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. The defendants were accused of conspiring and committing the crime of aggression against the Iraqi people, a violation of the Nuremberg Principles on crimes against peace.
On August 20, 2013, the United States Department of Justice requested that George W. Bush, Richard Cheney, Donald Rumsfeld, Colin Powell, Condoleezza Rice and Paul Wolfowitz be granted "absolute immunity".
The 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, the said defendants could not have been acting under the scope of employment, and thus sovereign immunity is not applicable.
Motion to dismiss
The case was due to be heard on 3 April 2014, in the Northern District of California, San Francisco division, but the hearing was canceled without explanation and no new date was set to hear it. As of August 10, 2014 a "motion to dismiss" the case was scheduled for Thursday, Sep 11 2014. Inder Comar made a "judicial estoppel" (preventing a party from taking a position contrary to one they have taken in earlier legal proceedings), citing the Nuremburg Trials; since the United States held Nazi leaders accountable for their acts of aggression, Comar argued that judicial estoppel dictates the Bush Administration and Department of Justice cannot argue that leaders aren’t accountable for acts of aggression. He argued further that in 1999, UK lawyers determined that Augusto Pinochet was not immune from action regarding the tortures carried out under his rule, because Chile had signed the UN convention against torture.
On 19 December, 2014, the court ruled on the motion of the U.S. Department of Justice to substitute itself for all of the defendants and dismiss the action with prejudice and on the plaintiff's motion for an evidentiary hearing. The DOJ cited 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 Court concludes that an evidentiary hearing would be inappropriate in this case because the certification and pleadings in this case “do not reveal an issue of material fact” as to whether Defendants were acting within the scope of their employment in conjunction with the war in Iraq."
Obstruction by US DOJ
A 2016 appeal was dismissed by 3-0 in February 2017, with Judge Susan Graber - while avoiding a ruling on the legality of the Iraq war - stating in February 2017 that "The actions that (Bush administration officials) took in connection with the Iraq War were part of their official duties" and that they are therefore entitled to immunity under the Westfall Act.
- The United States' Motion to Dismiss, Saleh v. Bush, U.S.D.C., Filed August 20, 2013
- The United States' Motion to Dismiss, Saleh v. Bush, U.S.D.C., Filed November 29, 2013
- Balboa, Juan R. (1995). Legislative Reform: The Westfall Act and Scope of Employment: The Role of the Attorney General. Journal of Legislation.