"If the expectation is that a federal court will declare that the invasion, although duly authorized by Congress, violated international law and thus violates U.S. law, I would respond that we walked up and down that hill with respect to Vietnam," Stephan said. "No federal court ever has recognized such a claim."Taking a deeper look
But Comar is optimistic that these hurdles can be overcome. The issue of whether or not Bush, Cheney, and the others will be found to have acted in an official capacity isn't open and shut.
According to Comar, part of the planning for the invasion happened within the United States, before these officials took office. Multiple letters and position papers emanating from the nonprofit think tank Project for a New American Century, or PNAC, indicate a long-term interest in regime change in Iraq. An open letter written in 1998 to then-president Clinton signed by Wolfowitz and Rumsfeld called for the removal of Saddam Hussein using military power. PNAC was also responsible for drafting and guiding the passage of the Iraqi Liberation Act in 1998, which authorized military support for opposition to Saddam Hussein.
Then, in 2000, Wolfowitz was a signatory to the 90-page report issued by PNAC titled "Rebuilding America's Defenses: Strategies, Forces, and Resources For a New Century," which calls for, among other things, global domination through force of arms. The document tellingly hints at the larger geopolitical justification for war with Iraq, stating that "while the unresolved conflict in Iraq provides the immediate justification [for U.S. military presence], the need for a substantial American force presence in the [Persian] Gulf transcends the issue of the regime of Saddam Hussein."
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.
Then there's the political question, which Comar concedes is an often-nebulous doctrine with no clear limits. But that doesn't mean that the crime of aggression necessarily qualifies as a political question.
"The legality of a war under international law was exactly the type of legal question that the Nuremberg court adjudicated," Comar says. "We believe that aggression as a tort is actionable under the Alien Tort Statute. It is not a generic international law claim but a bedrock norm of international behavior in the same manner as slavery, genocide or torture, which are all claims that can be made under the Alien Tort Statute."
Comar is confident that the courts will hear the case but is clear-headed about the prospects for conviction. He says that failure to achieve a multimillion-dollar settlement would not mean failure overall. A trial requires the gathering of evidence and provides a record for posterity.
Furthermore, Comar says, the judiciary is likely the last place people like Sundus Shaker Saleh can turn. It is highly unlikely that any president would ever investigate a past administration in the way sought by the suit, since the executive isn't keen to open the gates for further scrutiny into its actions. Indeed, the Obama administration has expanded many Bush programs, including the use of drone strikes and domestic surveillance.
Since neither the legislative nor the executive branch have attempted to investigate whether the Bush Administration officials are guilty of war crimes, the last remaining branch through which to seek redress is the judiciary. Pursuing the issue here, Comar believes, will force the issue back into the public sphere.
"Our law recognizes that the actions of every person in this country -- even a president -- is subject to judicial review before an impartial judge," Comar says. He continues:
"This is a concept that extends back to the Magna Carta, when English barons put restraints on their king in order to protect their rights and privileges. In this case, Ms. Saleh alleges that these defendants entered into government in order to execute a pre-existing plan to overthrow the Hussein regime -- a plan that has now led to the deaths of hundreds of thousands of Iraqis and U.S. servicemen and women, untold misery for millions, and chaos that continues to plague that country to the present day. This is the very behavior that was outlawed and declared criminal by the Nuremberg Tribunal."
It is unusual in the United States for high government officials to face legal consequences for their actions. Though low-ranking soldiers were prosecuted for torture in Iraq, none of the policy architects were ever held accountable.
Regardless of the resolution of Saleh v. Bush, the case sets an important precedent toward rebuilding a system of laws that apply equally to everyone, even if their alleged crimes were committed in the Oval Office.