DOJ seeks procedural immunity in war crimes case against Bush administration

August 28, 2013

By Brandon Reid
Senior Assistant Editor

Monday, Aug. 20, the United States Department of Justice (DOJ) filed court papers requesting members of the George W. Bush administration be granted procedural immunity in a case alleging they planned and waged the Iraq War in violation of international law.

Named in the complaint are former President George W. Bush, former Vice President Dick Cheney, former Secretary of Defense Donald Rumsfeld, former Secretary of State Colin Powell, former National Security Adviser and former Secretary of State Condoleezza Rice, and former Deputy Secretary of Defense Paul Wolfowitz.

The complaint was filed in March 2013 in San Francisco federal court by Sundus Shaker Saleh, an Iraqi single mother and refugee now living in Jordan. The complaint alleges the planning and waging of the Iraq War was a “crime of aggression” against the nation. The same legal theory was used by the Nuremberg Tribunal to convict Nazi war criminals following World War II.

Inder Comar of Comar Law, chief counsel for the case, said in a statement: “The DOJ claims that in planning and waging the Iraq War, ex-President Bush and key members of his administration were acting within the legitimate scope of their employment and are thus immune from suit.”

The Westfall Act of 1988 allows the U.S. attorney general to substitute the United States as the defendant to grant absolute immunity to government employees.

The good news is that while we were disappointed with the certification, we were prepared for it,” Comar stated. “We do not see how a Westfall Act certification is appropriate given that Ms. Saleh alleges that the conduct at issue began prior to these defendants even entering into office. I think the Nuremberg prosecutors, particularly American Chief Prosecutor Robert Jackson, would be surprised to learn that planning a war of aggression at a private nonprofit, misleading a fearful public, and foregoing proper legal authorization somehow constitute lawful employment duties for the American president and his or her cabinet.”

The lawsuit, Saleh v. Bush (N.D. Cal. Mar. 13, 2013, No. C 13 1124 JST), alleges that Cheney, Rumsfeld and Wolfowitz began planning the Iraq War in 1998 through their involvement in the “Project for the New American Century,” a Washington, D.C., nonprofit that advocated the military overthrow of Iraq President Saddam Hussein. According to the lawsuit, Cheney, Rumsfeld and Wolfowitz, along with other Bush officials, invaded Iraq by using the Sept. 11, 2001, terrorist attacks as an excuse and misleading and scaring the American public into supporting the war. The suit also claims the U.S. failed to obtain United Nations approval prior to the invasion, “rendering the invasion illegal and an act of impermissible aggression,” according to a press release.

The DOJ’s defense — under the Barack Obama administration — of the Bush administration’s actions leading up to the Iraq War come as the Obama administration gears for a possible military strike against Syria. Tensions were high Tuesday, Aug. 27, as Syria challenged the Obama administration to prove its claim that its military forces used chemical weapons in an attack that killed hundreds of civilians. U.S. government sources have said a military strike could come as early as Thursday, Aug. 29.

March 19, 2013, marked the 10-year anniversary of the start of the Iraq War, which began with the “shock and awe” of Operation Iraqi Freedom. Coalition deaths totaled more than 4,700, with the United States sustaining more than 4,480 deaths through the Iraq War’s official end Dec. 15, 2011. More than 32,000 other U.S. troops were wounded in Iraq, while more than 134,000 Iraqi civilians were killed during the course of the official war.

The cost of the war far exceeded initial estimates prior to the war that figured the total cost to be approximately $100 billion for a two-year involvement. According to nonpartisan congressional researchers, the war has cost at least $806 billion, which does not take into account related expenses, such as coming decades of veteran benefits and other costs associated with medical treatment and job retaining for wounded soldiers.

The U.S. retains an embassy in Baghdad, the capital of Iraq, with about 17,000 personnel; consulates in Basra, Mosul and Kirkuk, which each have a staff of about 1,000; and between 4,000 to 5,000 defense contractors. About 160 embassy guards guard the U.S. embassy in Baghdad.

From the Aug. 28-Sept. 3, 2013, issue

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