Monday, February 13, 2017
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Ninth Circuit Rejects Suit Against Bush, Cheney and Others Over Iraq War
By KENNETH OFGANG, Staff Writer
Former President George W. Bush and members of his administration cannot be sued in U.S. courts by victims of the Iraq war, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The court agreed with a U.S. district judge that a federal statute known as the Westfall Act bars actions against government officials in their personal capacities, even if, as the plaintiff alleged, they have committed war crimes.
Because the attorney general certified that the individual defendants were acting within the role and scope of employment when they did the acts for which they are being sued, Judge Susan Graber wrote, the federal government—which has sovereign immunity—had to be substituted as the lone defendant in the case.
Plaintiff Sundus Saleh brought a class action complaint in the U.S. District Court for the Northern District of California in 2013, naming Bush, former Vice President Dick Cheney, former Secretary of Defense Donald Rumsfeld, former secretaries of state Condoleeza Rice and Colin Powell, and former Deputy Secretary of Defense Paul Wolfowitz.
Saleh sued under the Alien Tort Statute, which allows suit to be brought in federal court for torts committed in foreign countries, although recent decisions have limited the act’s scope.
The plaintiff claimed the defendants committed violations of international law by planning an invasion as early as 1998, using the 2001 terrorist attacks to ramp up support for the invasion, misinforming the public as to the reasons for starting the war, failing to secure United Nations authorization for their actions, and waging aggressive war in order to remove the Saddam Hussein regime from power under the guise of national security.
U.S. District Judge Jon Tigar agreed with the government that the Westfall Act barred suit against the individual defendants and dismissed the case.
Graber, writing for the Ninth Circuit, rejected the argument that the defendants were acting outside the scope of employment. District of Columbia law, which governs the Westfall Act determination, applies respondeat superior quite liberally, she noted.
She specifically rejected the contention that Wolfowitz and Rumsfeld could be held liable because they began “planning” for war in their private capacities before Bush was elected. Since the allegedly tortious actions took place while they were in office, and their prior activities fall under the rubric of “advocacy” rather than planning, the Westfall Act applies.
Graber also agreed with the district judge that the plaintiff was not entitled to an evidentiary hearing on the propriety of the attorney general’s Westfall Act certification. Such a hearing would not have made any difference because the defendants were acting in the role and scope of employment as a matter of law, she said.
The jurist went on to say that violations of “jus cogens” norms of international law do not constitute an exception to the Westfall Act.
“We assume, without deciding, that the prohibition against aggression is a jus cogens norm,” she wrote. “But even assuming that the prohibition against aggression is a jus cogens norm, Plaintiff’s argument that Congress cannot provide immunity to federal officers in courts of the United States for violations of that norm is in serious tension with our caselaw.”
Judge Andrew D. Hurwitz and District Judge Richard F. Boulware of the District of Nevada, sitting by designation, joined in the opinion.
The case is Saleh v. Bush, 15-15098.
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