Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

With all of the discussion we have had on his blog about the abandonment of the rule of law in this country, I was very interested when I read about a class action lawsuit that was filed in March of this year.  The case is Saleh v. Bush, and it was filed in an attempt to hold former President George W. Bush and five members of his administration responsible and liable for the damages incurred when Iraq was attacked by the United States and some of its allies in 2003.

“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.” Yes Magazine  

The case was filed in March of 2013 in the United States District Court in Northern California by attorney Inder Comar, and the plaintiffs are attempting to use the Alien Tort Statute to make their claim.  “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.” Yes Magazine

A copy of the complaint that was filed can be found here.  It will be an uphill battle for these plaintiffs to be successful, but it is interesting that it takes a group of Iraqi’s to try to enforce American law.  Prior attempts to hold the Bush Administration and its members personally liable for their actions in approving torture subsequent to attacking Iraq have not been successful.  One such case was Ali v. Rumsfield.  The Ali case was dismissed and the dismissal was upheld by the United States Court of Appeals for the District of Columbia Circuit in June of 2011.

While some of the experts quoted in the Yes Magazine article linked to several times above are doubtful that the Saleh case can be successful in overcoming the likely defense claim that the Defendants cannot be sued for actions taken during the course of their duties in the administration; the Plaintiffs attorney is trying to hang his hat on the theory that the conspiracy to attack Iraq was actually started prior to when at least some of the Defendants were members of the Bush Administration.

The Plaintiffs point to the documents developed and executed by several Defendants who were members of the Project for a New American Century, or PNAC, as evidence that the conspiracy predated their employment.  “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.” Yes Magazine

As suggested earlier, the Plaintiffs have an uphill battle in their attempt to hold these government officials responsible for what they claim was an illegal and aggressive war against Iraq.  The Westfall Act which was signed into law in 1988, insulates individual government employees acting in their official capacities from liability for the actions that they take during the course of their employment.

The Plaintiffs and their attorney are aware that their chances of getting a full trial, let alone a money judgment is slim.  However, they seem to think that holding our elected officials and their appointed assistants to the same rule of law that ordinary citizens or soldiers are held to is a fight worth having.  I agree that this is a fight worth having.

Do you think that the Plaintiffs will be able to get to a full trial on the merits or will they be dismissed prior to actually going to trial?  Were President Bush and Vice President Cheney and the rest of the Defendants acting within the true scope of their employment duties?

Can the rule of law actually apply to Presidents and Vice Presidents and their subordinates anymore?  I think the Plaintiff’s attorney was correct when he suggested that even Presidents can be held to the rule of law.  I just don’t know how they are going to meet that goal.   How can a former or sitting President be held liable for what many consider illegal acts?

As the Chief Prosecuting Attorney at the Nuremburg Trials, Robert H. Jackson, as quoted in the Saleh complaint put it, ‘ ““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.” ‘

If only our past and current political officials understood this concept, we might actually see a return of the full rule of law to this country.  I guess another way of explaining Nuremburg prosecutor Jackson’s words is “The Whole World is Watching”.   Do you think our politicians would agree with Mr. Jackson?