What does the lawsuit say?
Saleh v. Bush involves a claim by an Iraqi woman that the Bush Administration violated the laws set down at the Nuremberg Trials. The plaintiff alleges that members of the Bush Administration planned the war since 1998 and then scared and misled the public into supporting the war in 2002, once they came into power.
The plaintiff suffered property loss during the war, and is now a refugee living in Jordan.
In planning and executing the war, the plaintiff alleges that members of the Bush Administration committed the “crime of aggression.”
What is the “crime of aggression”?
The crime of aggression was the chief crime prosecuted against the Nazis at the Nuremberg Trials. The crime of aggression takes place when a country prepares and plans a war against another country without a legal justification, such as self-defense or when authorized by the United Nations Security Council.
American prosecutor Robert Jackson argued that the harms caused by the Nazis, including the genocides, were the “poisonous fruit” of a much bigger crime, which was the original breach of the peace.
In other words, had the Nazis never planned their wars, their war crimes and crimes against humanity would have never happened in the first place.
The lawsuit alleges that the Bush Administration committed the crime of aggression in planning the war since 1998 and then scaring and misleading the public into supporting the war.
What’s the evidence that the Bush Administration planned the Iraq War?
The lawsuit alleges that in 1998, Defendants Cheney, Rumsfeld and Wolfowitz publicly advocated the invasion of Iraq in order to further the aims of US foreign policy. They did so through their non-profit, the Project for the New American Century (“PNAC”). Many if not all of the letters and articles advocating the invasion of Iraq (some of which are personally signed by Rumsfeld and Wolfowitz) remain on their website.
The lawsuit alleges that once in government, these three men and the other Defendants agreed to invade Iraq, planned out the war, and then scared and misled the public into supporting it.
The lawsuit cites as evidence books written by Richard Clarke and Scott McClellan, articles from the New York Times and the Washington Post, comments made by Colin Powell after he left the Bush Administration, and the “Downing Street Memo,” a leaked British Memo circulated in 2002 which indicated that the Bush Administration was planning the war.
How can an Iraqi woman sue in US court?
The Iraqi plaintiff has invoked the jurisdiction of the federal court based on the Alien Tort Statute (28 U.S.C. sec. 1350), a law passed in 1789. The Alien Tort Statute permits a non-US 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.”
Isn’t the President immune from a civil suit stemming from actions he or she takes while in office?
In 1982, the United States Supreme Court held in Nixon v. Fitzgerald, 457 U.S. 731 (1982), a 5-4 decision, that the President of the United States has civil immunity for actions taken while in office.
The lawsuit acknowledges this case, but distinguish Nixon by stating that the President remains liable for violations of bedrock customary norms of international law. In other words, if a President commits genocide, torture, or — in this case — the crime of aggression, the lawsuits argue the President can still be subject to civil liability.
The lawsuit argues that if the court finds that Nixon is on point, then it is wrongly decided and should be overturned based on the conduct of the Bush Administration.
Finally, Nixon on its face applies only to the person who was president, and does not apply to other members of the Executive Branch.
Have you heard of the political question doctrine? Won’t the lawsuits be thrown out on that basis?
The political question doctrine forbids courts from adjudicating political issues. The federal courts have held that some clauses of the Constitution (like the Guarantee Clause, which requires the states to have republican forms of government) are so political it would be inappropriate for a court to adjudicate a dispute on those issues.
It is very likely the Defendants will argue that the war-making power is a political question, which the court has no jurisdiction to decide. However, the plaintiffs will argue that whether any given war constitutes “aggression” is a purely legal question, the very legal question that was decided at Nuremberg. Because Nuremberg set legal precedent for purposes of international law, and because the US federal court is now being asked to decide a question of international law based on Nuremberg, the question of whether the Iraq War constituted “aggression” is, by logical conclusion, a legal question that can be determined based on the alleged facts.
What if I am uncomfortable with these lawsuits?
The idea of suing former administration officials over a controversial war strikes some people as offensive. Witness Iraq believes the opposite. For over 800 years, the common law legal tradition has been based on the idea that no person — including the king — is above the law. Presidents are not kings, and there is no sound reason why the actions of a president cannot be scrutinized by a court of law. If a CEO lies to her shareholders, the CEO is investigated. If a person commits an accident and someone dies, that person is investigated for possible negligence or wrongdoing. Presidents have tremendous power over the lives of others, both in the US and overseas. If that power is misused, America’s system of checks and balances mandates that a court examine such abuse.
If a court permits this lawsuit, won't every President be sued for his or her actions once they leave office by plaintiffs?
Government officials are already sued all the time. State leaders, for example, are already subject to federal lawsuits under 42 U.S.C. sec. 1983 (the Ku Klux Klan Act / Civil Rights Act of 1871). The United States Supreme Court recently narrowed the ability for plaintiffs to sue government officials by requiring they show direct conduct by that official in causing their harm. Former Bush administration officials like John Ashcroft and John Yoo have been sued by plaintiffs, and the courts were able to appropriately handle those cases.
What about Congress? Congress can always investigate. Isn't the appropriate remedy a Congressional investigation?
A Congressional investigation is warranted with respect to the Iraq War. But these are not mutually exclusive remedies. Congress is not in a position to adjudicate legal issues, which are the province of a court. If a legal remedy exists to a plaintiff with respect to possible lawbreaking, and if a court has jurisdiction, the common law permits a plaintiff to submit a civil claim against that defendant.
Is there a risk of sanctions because of these lawsuits?
The lawsuits ask questions that make many people uncomfortable, as they deal with issues of life and death and war and peace. But the legal theories have been generally thought through and explained in the complaints. A court may disagree with those theories, or rule that it cannot overturn existing precedent, but that’s a very different thing that finding a petition so frivolous or baseless as to be sanctionable conduct.
The First Amendment guarantees the right of a plaintiff to petition the court for redress. Even Orly Taitz, the lawyer who has gone to court several times over President Obama’s birth certificate, was given her day in court. Witness Iraq submits that the Iraq War lawsuits have far greater weight than that issue
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