© Evan Vucci/AP
Today the United States Court of Appeal for the Ninth Circuit
confirmed that Circuit Judges Susan Graber and Andrew Hurwitz, as well as District Court Judge Richard Boulware (sitting by designation) will hear oral argument on December 12, 2016, in Saleh v. Bush.Saleh v. Bush involves claims by an Iraqi woman, Sundus Shaker Saleh, that former
President George W. Bush and other high ranking Bush-era officials
broke the law when they planned and waged the Iraq War. Saleh alleges that former Bush Administration leaders committed the
crime of aggression when they planned and executed the Iraq War, a war crime that was called
the "supreme international crime" at the Nuremberg Trials in 1946.
Saleh is appealing the immunity provided to the Defendants by the district court in December 2014.
"We are pleased that the Ninth Circuit will hear argument. To my knowledge, this is the
first time a court will entertain arguments that the Iraq War was illegal under domestic and international law," Saleh's attorney D. Inder Comar, legal director at Comar LLP, said. "This is also the first time since World War II that a court is being asked to
scrutinize whether the war itself was an illegal act of aggression โ a special war crime that was defined at the Nuremberg Trials in 1946." Comar is handling Saleh's case pro bono.
CrossTalk with Peter Lavelle - September 30, 2013
Assuming the oral argument takes place, the argument will be live streamed and recorded on the
Ninth Circuit's YouTube channel, permitting members of the public to watch the argument. The Court's calendar commences at
9:00 a.m. Pacific Time on December 12th; the case will likely be heard later in the morning, as it is last on the Court's calendar.
In addition to former
President Bush, Saleh has named
former Administration officials Richard Cheney, Colin Powell, Condoleezza Rice, Donald Rumsfeld and Paul Wolfowitz as defendants in the case.In December 2014, the district court dismissed Saleh's lawsuit, holding that the
defendants were immune from further proceedings because of the
federal Westfall Act of 1988 (28 U.S.C. ยง 2679). The Westfall Act
immunizes former federal officials in civil lawsuits if a court determines that the official was acting pursuant to the legitimate scope of his or her employment.
Saleh disputes the immunity, arguing that the planning and waging of a war of aggression against Iraq
fell outside the legitimate scope of employment of former President Bush and the other defendants.
Comment: The Justice Department lawyers argued that the case came under the Federal Tort Claims Act (Westfall Act) because the Bushies had acted within the "scope of their employment" in bringing about the war. Saleh's response stated it wasn't covered by that law because the president was pursuing a private ideological agenda
that he had displayed in 1998, long before taking office in 2001. In addition, the Iraq War was not US self-defense and lacked appropriate authorization by the United Nations, categorizing it a "crime of aggression" under international law. If Saleh wins, it would mean the president of the United States is not above the law, does not get a free pass.
UPDATE:
9th Circuit hears oral argument in Saleh V. Bush, et al.
December 12, 2016 was a historic day, marking the first time that a U.S. court heard argument related to the actions of senior Bush-era officials who were responsible for the planning and waging of the Iraq War.
Circuit court judges Andrew Hurwitz and Susan Graber and District Court judge Richard Boulware (sitting by designation on the 9th Circuit), heard argument that the immunity granted to former President George W. Bush and other officials by the federal district court related to their conduct in waging the Iraq War should be overturned. This immunity was provided in December 2014, resulting in the current appeal.
The judges spent most of oral argument focusing on the nature of the domestic immunity, questioning both counsel for the Iraqi plaintiff, Sundus Saleh, as well as counsel for the United States about where immunity ends for government officials.
The judges will issue their opinion as to whether the immunity should be overturned in the coming weeks.
Comment: The Justice Department lawyers argued that the case came under the Federal Tort Claims Act (Westfall Act) because the Bushies had acted within the "scope of their employment" in bringing about the war. Saleh's response stated it wasn't covered by that law because the president was pursuing a private ideological agenda that he had displayed in 1998, long before taking office in 2001. In addition, the Iraq War was not US self-defense and lacked appropriate authorization by the United Nations, categorizing it a "crime of aggression" under international law. If Saleh wins, it would mean the president of the United States is not above the law, does not get a free pass.
UPDATE:
9th Circuit hears oral argument in Saleh V. Bush, et al.