Saleh v. Bush

Saleh v. Bush is a class action lawsuit filed in 2013 against high-ranking members of the George W. Bush administration (including George W. Bush, Dick Cheney, Donald Rumsfeld, Condi Rice, Colin Powell, and Paul Wolfowitz) for their alleged involvement in premeditating and carrying out the Iraq War. In December 2014, the district court hearing the case ordered it dismissed with prejudice. The plaintiffs have appealed that decision to the United States Court of Appeal for the Ninth Circuit.

2013: Filing
The lawsuit alleged that the defendants conspired to wage a war of aggression against the Iraqi people, a violation of the Nuremberg Principles. (The lawsuit was brought to United States District Court in the Northern District of California by lawyer Inder Comar, and the lead plaintiff is Sundus Shaker Saleh, an Iraqi expat.) Specifically, the allegations claim the primary purpose of the Iraq war was to enact regime change in Iraq, as distinct from national self defense. In pursuit of this goal, the defendants are alleged to have: planned the war as early as 1998; capitalized on the September 11 attacks in 2001 to ramp up support for the invasion; utilized fear tactics and intentional misinformation; entered Iraq without fully proper UN Security Council authorization. (If successful, the lawsuit would be the first time since the Nuremberg Trials that any U.S. government officials were convicted of crimes against peace whilst waging a war of aggression.)

The United States Department of Justice (DOJ) is arguing the case in favor of the defendants, who are former government officials. The DOJ filed a motion to dismiss the charges on August 20, 2013, and a similar filing was made on November 29, 2013.

2014: Dismissal
On May 19, 2014, the Northern District of California dismissed the case, but with 20 days leave to amend. On June 8, 2014, the plaintiffs filed their second (amended) complaint. The next day the plaintiffs filed a request for an evidentiary hearing, requesting that the court permit them the opportunity to provide the evidence the court had demanded. On August 15, 2014 the DOJ was scheduled to have the ability to respond to the second amended complaint. A hearing date had been set for September 11, 2014, but on August 18, 2014, the Northern District Court reset the hearing date for November 13, 2014. The hearing date was cancelled on November 3, 2014.

On 19 December 2014, the lawsuit was dismissed with prejudice. The court made several rulings, on the motion of the U.S. Department of Justice (DOJ) to substitute itself for all of the defendants and thereby dismiss the action with prejudice, as well as on the plaintiff's motion for an evidentiary hearing. The DOJ cited the Westfall Act, claiming that the defendants were acting within their scope of employment when planning and waging the Iraq War, and therefore cannot be held individually accountable for any harm allegedly caused. The Westfall Act rules that harm done within the scope of employment is the responsibility of the employer (in this case the United States federal government), which as a nation-state is protected against all criminal prosecution by sovereign immunity. The court ruled that the burden was on the plaintiff to have already provided evidence that the defendants were not acting within the scope of their employment, and in the absence of such evidence, dismissed the lawsuit.

2015: Amicus brief
A notice of appeal with the United States Court of Appeal for the Ninth Circuit was filed on January 16, 2015. On May 27, 2015, the plaintiffs made an appellate opening brief to the 9th Appeals Court. A week later, on June 2, a group of international lawyers (including former Attorney General Ramsey Clark) filed an amicus brief in support of the plaintiffs.

2016: Appeal
On July 22, 2016, the plaintiffs filed a motion for judicial notice, submitting excerpts from the Chilcot Report in support of their claims. The Ninth Circuit judges Susan Graber and Andrew Hurwitz, plus visiting judge Richard Boulware, heard thirty minutes of oral arguments on December 12, 2016.

On February 10, 2017, the Ninth Circuit affirmed the judgment.