Dahr Jamail | Former US Attorney General Files Brief in Lawsuit Challenging Legality of Iraq War

Sundus Saleh, an Iraqi single mother, is suing members of the George W. Bush administration for their role in the war in Iraq. Saleh has assembled an international team of lawyers, who are requesting the US Court of Appeals for the Ninth Circuit hear her claim that the US-led Iraq war was illegal under laws formed from the Nuremberg trials in the wake of World War II.

“The invasion resulted in the total destruction of a beautiful, peaceful country,” Saleh told Truthout. “The invasion didn’t destroy only the country’s infrastructure, buildings and heritage; it destroyed millions of families and their dreams.”

Through her pro bono counsel, Comar Law in San Francisco, Saleh filed papers on May 27 urging the Ninth Circuit to review facts and statements made by high-ranking Bush administration officials – including former President George W. Bush, former Vice President Richard Cheney and former Secretary of Defense Donald Rumsfeld – during the lead-up to the Iraq war.

Shortly thereafter, on June 2, an international group of lawyers, which includes former US Attorney General Ramsey Clark, filed an amicus brief in support of Saleh’s claims. Amicus briefs allow parties who have a strong interest in a case’s subject matter to advise the court of further pertinent information or additional arguments.

“Ms. Saleh alleges that the Iraq war constituted ‘aggression’ as defined by the Nuremberg trials in 1946,” her lawyer, Inder Comar, told Truthout. “She is asking the Ninth Circuit to review the holdings of Nuremberg, which it can do, and to apply that law to the facts leading up to the war. She is convinced, as am I, that under Nuremberg, these officials broke domestic and international law in planning and waging the Iraq war.”

As Saleh’s case continues to gain international attention, Comar is far from alone in his views.

Ensuring Respect for the Law

Former US Attorney General Ramsey Clark told Truthout that Saleh’s case represents a crucial struggle for anyone concerned with human rights.

“It is always necessary to pursue the course of justice against those who commit injustices,” Clark said. “In this case as many as 3.5 million people have lost their lives as a consequence of the crime of aggression – the illegal use of force perpetrated against the people of Iraq – and the country’s development has been set back countless years. Human rights need to be defended everywhere, by all those who are able.”

Clark believes it is important for the US public that Saleh’s lawsuit and his amicus brief filing succeed because when elected officials violate the law, the “rule of law” – which the US government is theoretically based on – is disrespected.

“We as Americans have the primary responsibility for ensuring our leaders respect the law, including international law,” Clark said.

Marjorie Cohn, a professor at Thomas Jefferson School of Law and former president of the National Lawyers Guild (and a Truthout contributing writer), feels similarly.

“It is high time the victims of Bush’s illegal war of aggression against the people of Iraq receive compensation for their needless suffering,” Cohn told Truthout. “US presidents routinely ignore the treaties we have ratified, including the United Nations Charter, which prohibits military interventions except in self-defense.”

Cohn added that the Iraq war was not conducted in self-defense, and pointed out that Iraq had not invaded a country for a dozen years and that the Bush administration knew that former Iraq dictator Saddam Hussein did not possess weapons of mass destruction.

“Team Bush tried mightily to forge a connection between Hussein and al-Qaeda, which it was unable to accomplish,” Cohn added. “If this lawsuit prevails, it will deter future administrations from waging similar aggressive wars.”

Comar believes the recent high-profile amicus filing marks a turning point in Saleh’s lawsuit, and affirms its potential as a watershed case for upholding standards of accountability for political leaders everywhere.

An additional amicus brief was filed by the Planethood Foundation, a nonprofit organization established by the last living Nuremberg prosecutor, Benjamin Ferencz.

Comar believes the amicus briefs add important gravity to the lawsuit. They reflect that both domestic and international lawyers, including a former US attorney general, are asking serious questions about the road to war with Iraq and whether grave breaches of law took place.

“I recall the words of former [UN] Secretary General [Kofi] Annan in 2004, who labeled the war ‘illegal,'” Comar told Truthout. “The Nuremberg tribunal held that aggressive wars were the ‘supreme international crime,’ because the fruits of such wars contain the accumulated evil of war in all its horror. This is a horror that continues to play itself out, daily, in Iraq; the architects of such chaos have yet to be meaningfully questioned as to their role in this unmitigated tragedy.”

Like Cohn, Comar noted that the US government is grounded in the idea of the rule of law. He believes that if we allow elected leaders to commit crimes without accountability, it creates a culture of lawlessness and impunity where certain people are above the law, while others live in fear of terrifying consequences for relatively minor offenses.

“History is replete with examples of leaders who use wars and the threats of war to increase their power at the expense of freedom and democracy,” Comar said. “Nuremberg held that wars are subject to law and that leaders who commit aggression must be held to account before a judge. Without the sanction of law, there will be nothing to stop the next Iraq war from taking place.”

Dreaming of Iraq

Saleh’s case alleges that George W. Bush, Richard Cheney, Colin Powell, Condoleezza Rice, Donald Rumsfeld and Paul Wolfowitz committed aggression in planning and waging the Iraq war.

According to Comar, the lawsuit claims that high-ranking Bush officials used the fear of 9/11 to mislead the US public into supporting a war against Iraq, and that they knowingly issued false statements that Iraq was in league with al-Qaeda and had weapons of mass destruction.

The international military tribunal at Nuremberg, convened in large part by the United States following World War II, declared international aggression the “supreme international crime” and convicted German leaders of waging illegal wars.

Nonetheless, in December 2014, the Northern District of California dismissed Saleh’s lawsuit, claiming that former Bush administration officials were immune from a civil suit.

Saleh is now requesting that the Ninth Circuit overturn the federal district court’s finding of immunity.

“Nuremberg held that domestic immunity was not a defense to allegations of international aggression. Everything the Germans did was legal under their law,” Comar said. “We are asking the Ninth Circuit to reject the application of domestic immunity in this case, in line with the holdings of Nuremberg.”

Saleh believes it is possible to win her lawsuit against the Bush administration officials because she believes that “some kind” of democracy exists in the United States.

“I feel certain that people in the US will look at my case and take into consideration all the facts and reasons behind it,” she said. Her opening brief can be read here.

And if she doesn’t win?

“At least I can influence public opinion and move the feelings of people who support me or read about my story,” she said.

Saleh said she already is gaining strength from taking the action of filing her lawsuit. Before, she often felt helpless.

When she speaks publicly, Saleh asks people to remember what Iraq is like today. The country she grew up in no longer exists.

“Iraq for us is only a memory. There is no Iraq, and we feel very sad for losing our beloved country,” she said. “The American officials claimed that they wanted to bring democracy to Iraq, so where is that democracy?”

Saleh sees all of the killing and destruction and hatred between Iraqis today as direct results of the US-led war and occupation.

“I could bring you millions of signatures from Iraqi people who would like to go back to live in an Iraq they are always dreaming of, an Iraq they used to know,” she said. “But it is not the Iraq of today.”