In the lobby of the James R Browning courthouse in San Francisco, there was a digital sign listing that day’s cases. At 9.30am on Monday 12 December last year, the United States Court of Appeals for the Ninth Circuit would hear Slep-Tone Entertainment Corp v Wired For Sound Karaoke and DJ, a case involving a karaoke trademark infringement. At 10am they would entertain Craig Yates v Sweet Potato Enterprise, Inc, a case involving a disabled man’s access to a Popeyes chicken franchise. And at 11.30 they would hear Sundus Saleh v George Bush et al, the only case yet filed in the US that questions the legality of the war in Iraq.
The plaintiff was Sundus Shaker Saleh, an Iraqi teacher, artist and mother of five, who had been forced to leave Iraq in the wake of the invasion and the country’s subsequent devolution into civil war. Once prosperous, her family had lived in poverty in Amman, Jordan, since 2005.
Representing Saleh was a 37-year-old attorney who works alone and whose usual clients are small tech startups looking to protect their intellectual property. His name is Inder Comar, and if Atticus Finch were to be reimagined as a crusading, multicultural, west coast lawyer, Comar, whose mother was Mexican and father was from India, might suffice. He is handsome and quick to smile, though standing outside the courthouse on that windy Monday, he was tense. It was unclear whether the new suit was helping.
“I just got it,” he said. “What do you think?”
It was a three-piece, silver-grey, with black pinstripes. Comar had bought it a few days earlier, thinking he needed to look as professional and sane as possible, because ever since he conceived the notion of suing the planners of the war in Iraq, he had been conscious of not appearing a crackpot or dilettante. But the impact of this new suit was murky: it’s either the kind of thing worn by a slick Texas oilman, or the outfit a misguided teenager would wear to prom.
The day before, in Comar’s apartment, he told me this was the most significant hearing of his career. He had never argued a case before the Ninth Circuit, which is just one rung below the supreme court, and hadn’t eaten, slept or exercised properly in weeks. “I’m still shocked we’re having a hearing,” he said. “But it’s already a victory, the fact that US judges will hear and debate this point.”
The point: whether the president, vice-president and the rest of those who planned the war are personally legally culpable for its consequences. Normally the executive branch would be immune to litigation related to actions taken while in office, as are all federal employees; but this protection applies only when those employees are acting within the scope of their employment. Comar was arguing that Bush et al were acting outside that protection. Further, they had committed a crime of aggression – a violation of international law.
The prospect that, in a few hours’ time, the three-judge panel would agree with Comar and demand that the planners of the war – former president George W Bush, former vice-president Richard B Cheney, former secretary of state Colin Powell, former secretary of defence Donald Rumsfeld, former deputy secretary of defence Paul Wolfowitz and former national security adviser Condoleezza Rice – be held liable for the implosion of Iraq, the deaths of more than 500,000 Iraqi civilians and the displacement of five million more, seemed highly unlikely.
“Then again,” Comar said, “maybe they just thought, ‘Why not give this guy his day in court?’”
Inder Comar was in law school at New York University when the war began, and while the invasion was going from bad to good to bad to catastrophic, he took a class about unprovoked aggression in international law, centred around the legal precedent set by the Nuremberg tribunal. At Nuremberg, prosecutors successfully argued that, though the Nazi leadership who perpetrated the second world war were following orders and acting within the scope of their duties as stewards of the German state, they were nonetheless liable for crimes of aggression and crimes against humanity. The Nazis had invaded sovereign nations without provocation, and could not use domestic laws to protect them. In his opening statement, Robert Jackson, the American supreme court justice and chief prosecutor, said: “This trial represents mankind’s desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world’s peace and to commit aggressions against the rights of their neighbours.”
The case seemed to Comar to have at least a few overlaps, especially after the world realised that Saddam Hussein had no weapons of mass destruction and that the planners of the invasion had first contemplated regime change in Iraq long before there was any notion of WMD. Over the next few years, international opinion began to coalesce against the legality of the war. In 2004, then UN secretary general Kofi Annan called the war “illegal”. The Dutch parliament called it a breach of international law. In 2009, Benjamin Ferencz, one of the American prosecutors at Nuremberg, wrote that “a good argument could be made that the US invasion of Iraq was unlawful”.
Comar, by then a private attorney practising in San Francisco, wondered why no one had sued the administration. Foreign citizens can sue in the US for violations of international law, so between the legal standing of an Iraqi victimised by the war and the precedents set by the Nuremberg trial, Comar thought there was a real possibility of a lawsuit. He mentioned it to fellow lawyers and former professors. Some were mildly encouraging, though none thought such a suit would go anywhere.
Meanwhile, Comar half-expected someone else to prosecute the case. There are more than 1.3 million attorneys in America, and thousands of crusading non-profits. A few lawsuits had been filed, arguing that the war was never properly authorised by Congress and thus unconstitutional. And there had been a dozen or so lawsuits against Rumsfeld for his sanctioning of the use of torture on detainees. But no one had argued that, when they planned and executed the war, the executive branch broke the law.
In 2013, Comar was working out of a shared office space called the Hub, surrounded by startups and non-profits. One of his office-mates had come to know a prominent Jordanian family who lived in the Bay area and, since the war, had been helping Iraqi refugees in Amman. Over the course of many months, they introduced Comar to refugees living in Jordan, among them Sundus Shaker Saleh. Comar and Saleh spoke via Skype, and in her he found a passionate and eloquent woman who, 12 years after the invasion, was no less outraged.
Saleh was born in Karkh, Baghdad, in 1966. She studied at the art institute in Baghdad and became a successful artist and teacher. The Salehs were adherents to the Sabean-Mandean faith, a religion that follows the teachings of John the Baptist but asserts a place outside the realms of Christianity or Islam. Though there were fewer than 100,000 Mandeans in Iraq before the war, they were left alone by Hussein. Whatever his crimes, he maintained an environment in which Iraq’s many ancient faiths peacefully coexisted.
After the US invasion, order evaporated and religious minorities were targeted. Saleh became an election official, and she and her family were threatened. She was assaulted, and went to the police for help, but they said they could do nothing to protect her and her children. She and her husband separated. He took their eldest son with him, and she took the rest of the family to Jordan, where they have lived since 2005 without passports or citizenship. She worked as a maid, a cook and a tailor. Her 12-year-old son had to leave school to work and contribute to the family income.
In March 2013, Saleh engaged Comar to file suit against the planners of the Iraq invasion; he would receive no money, nor seek compensation. In May, he went to Jordan to take her testimony. “What I built in years was destroyed in one minute in front of my eyes,” she told him. “My work, my position, my parents, my whole family. Now I just want to live. As a mother. My children are like a flower. Sometimes I can’t water them. I like to hold them, but I am too busy trying to survive.”
“These are dangerous times,” Comar told me on 11 December last year. He had not planned to make his case about Trump, but his first hearing was taking place a month after the election and the implications for the abuse of power were grave. Comar’s case was about the rule of law – international law, natural law – and already Trump had not indicated a deep respect for procedures or facts. Facts are at the heart of the war on Iraq. Comar argues they were concocted to justify the invasion, and if any president were to falsify facts to fit his purposes, it would be Trump, who tweets demonstrably false information to his 25 million followers. If ever there were a time to clarify what the US can and can’t do in terms of the invasion of sovereign nations, it would seem to be now.
For Comar, the best possible outcome at the next day’s hearing would be that the court sent the case down for an evidentiary hearing: a proper trial. Then he would have to prepare an actual case – on the scale of the Nuremberg tribunal itself. But first he had to get past the Westfall Act.
The full name of the Westfall Act is the Federal Employees Liability Reform and Tort Compensation Act of 1988, and it was at the crux of Comar’s lawsuit, and of the government’s defence. In essence, the act protects federal employees from litigation stemming from actions within their scope of duty. If a postal worker inadvertently delivers a bomb, he or she cannot be sued in a civil court, because they were operating within the boundaries of their employment.
The act has been applied when plaintiffs have sued Rumsfeld for his role in the use of torture. In every case, though, courts have agreed to the substitution of the US as the named defendant, instead of him. The implicit reasoning is that Rumsfeld, as secretary of defence, was tasked with defending the nation and, if necessary, planning and executing wars.
“But this is exactly what the Nuremberg tribunal addressed,” Comar told me. “The Nazis made the same argument: that their generals were tasked with waging war, and they did so, that their soldiers were following orders. That’s the argument that Nuremberg dismantled.”
Comar lives in almost spartan frugality in a studio apartment in downtown San Francisco. The view is of a wall of cement covered with moss and ferns; the bathroom is so small, a visitor can wash his hands from the foyer. On the shelf next to his bed is a book entitled Eating The Big Fish.
He does not have to live this way. After law school, Comar spent four years at a corporate law firm, working on intellectual property cases. He left to create his own firm, so he could split his time between social justice cases and those that would pay the bills. Twelve years after graduating, he still carries significant debt from his law school loans (as did Barack Obama when he took office).
When we spoke in December, he had a number of other pressing cases, but had been preparing for the hearing for nearly 18 months. As we talked, he continually looked out of the window, towards the wall of moss. When he smiled, his teeth gleamed in the flat light. He was earnest but quick to laugh, enjoyed discussing ideas and often said, “That’s a good question!” He looked and spoke like the tech entrepreneurs he typically represents: thoughtful, calm, inquisitive, with a bit of the why-not-give-it-a-shot? attitude essential to any startup.
Since his initial filing in 2013, Comar’s case had wound through the lower courts in what seemed a fruitless bureaucratic walkabout. But the intervening time had given him the opportunity to bolster his brief; by the time his appeal was filed with the Ninth Circuit, he had received unexpected support from eight prominent lawyers, each of whom added their own amicus briefs. Notable among them was Ramsey Clark, former attorney general of the US under Lyndon B Johnson, and Marjorie Cohn, former president of the National Lawyers Guild. Comar then heard from the foundation created by Benjamin Ferencz, the 97-year-old Nuremberg prosecutor he had written to: the Planethood Foundation filed an amicus brief.
“Those briefs were a big deal,” Comar said. “The court could see there was a small army behind this. It wasn’t just some crazy guy in San Francisco.”
Monday 12 December is cold and blustery. The courtroom where the hearing will take place is located at Mission Street and 7th Street, less than 30 metres from where drugs are openly bought and consumed. With Comar is Curtis Doebbler, a law professor from the Geneva School of Diplomacy and International Relations; he flew in the night before. He is bearded, bespectacled and quiet. With his long dark trenchcoat and heavy-lidded eyes, he has the air of someone emerging from a foggy night bearing bad news. Comar intends to give him five minutes of his 15 to focus on the case from the perspective of international law.
We enter the courtroom at half past eight. All the morning’s appellants are expected to arrive by nine and listen respectfully to the rest of the morning’s cases. The courtroom is small, with about 30 seats for spectators and participants. The judges’ bench is high and triparted. Each of the three judges has a microphone, a small pitcher of water and a box of tissues.
Facing the judges is a podium where the attorneys present their arguments. It is bare but for two objects: a piece of paper printed with the judges’ names – Hurwitz, Graber and Boulware – and a device, the size of an alarm clock, with three rounded lights atop it: green, yellow, red. The clock’s digital display is set at 10.00. This is the timer, which counts backward to 0, that will tell Inder Comar how much time he has left.
It’s important to explain what a hearing in front of the Ninth Circuit means and doesn’t mean. On the one hand, it’s an immensely powerful court whose judges are highly esteemed and rigorous in choosing what cases they hear. On the other hand, they do not try cases. Instead, they can uphold a lower court ruling or they can remand a case (send it back to a lower court for a real trial). This is what Comar is seeking: the right to an actual hearing on the legality of the war.
The last crucial fact of the Ninth Circuit is that it allots between 10 and 15 minutes per side per case. The plaintiff is given 10 minutes to explain why a lower court’s ruling was wrong, and the defendant is given 10 minutes to explain why that previous ruling was just. In some instances, ostensibly when an issue is particularly important, cases are given 15 minutes.
The plaintiffs in the karaoke case, among other cases that morning, have been given 10 minutes. Comar and Saleh’s case has been given 15. It’s at least a cursory nod to the relative importance of the issue at hand: the question of whether or not the US could invade sovereign nations under false pretences – its precedent and implications.
Then again, the Popeyes chicken case has been given 15 minutes, too.
The day’s proceedings begin, and to anyone without a law degree, the cases before Comar’s do not make much sense. The lawyers are not presenting evidence, calling witnesses and cross-examining. Instead, each time a case is called, the following ensues. The lawyer steps up to the podium, sometimes turning to the audience for a last boost of courage from a colleague or loved one. Then the lawyer brings his or her papers to the podium and carefully arranges them. On these pages – certainly on Comar’s – is a written outline, tidy, deeply researched, of what the attorney will say. With the papers arranged, the lawyer indicates she or he is ready, the clerk starts the timer, and 10.00 quickly becomes 8.23 and 4.56 and then 2.00, at which point the green light gives way to yellow. It is nerve-racking for all. There is not enough time.
And none of this time belongs to the plaintiff. Without exception, within the first 90 seconds, the judges pounce. They don’t want to hear speeches. They’ve read the briefs and researched the cases; they want to get into the meat of it. To the untrained ear, much of what goes on in the courtroom sounds like sophistry – testing the strength of a legal argument, proposing and exploring hypotheticals, scrutinising language, semantics, technicalities.
The judges have very different styles. Andrew Hurwitz, on the left, does most of the talking. Before him is a tall cup of Equator coffee; during the first case, he finishes it. Thereafter, he seems to be buzzing. As he interrupts the attorneys, he turns repeatedly, reflexively, to the other judges, as if to say, “Am I right? Am I right?” He seems to be having fun, smiling and chuckling and always engaged. At one point he quotes Seinfeld, saying, “No soup for you.” During the karaoke case, he offers that he is an enthusiast. “I’m a consumer of karaoke,” he says. Then he turns to the other two judges, as if to say, “Am I right? Am I right?”
Justice Susan Graber, in the middle, does not return Hurwitz’s glances. She stares straight ahead for the better part of three hours. She is fair-skinned and her cheeks are rosy, but her affect is severe. Her hair is short, her glasses narrow; she stares each attorney down, unblinking, her mouth on the verge of being aghast.
On the right is Justice Richard Boulware, younger, African American and with a neatly trimmed goatee. He is sitting by designation, meaning he is not a permanent member of the Ninth Circuit. He smiles every so often but, like Graber, has a way of pursing his lips, or placing his hand on his chin or cheek, that indicates he is barely tolerating the nonsense before him.
As the hour approaches 11, Comar grows more nervous. When, at 11.03, the clerk announces, “Sundus Saleh v George Bush,” it’s hard not to feel anxious for him and his neat two-page outline.
The light goes green and Comar begins. He speaks for just over one minute before Graber interrupts. “Let’s cut to the chase,” she says.
“Sure,” Comar says.
“As I read the cases,” she says, “federal employees’ actions can be pretty darn wrongful and still be covered by the Westfall Act, still be part of their employment, and therefore subject to the immunity of the Westfall Act. Do you disagree with that as a general principle?”
“I don’t disagree with that as a general principle,” Comar says.
“OK,” Graber says, “so what’s different about this particular thing?”
Here, of course, is the place where Comar had intended to say, “What makes this particular thing different is that it was a war. A war based on false pretences and manufactured facts. A war that caused the deaths of at least half a million people. Half a million souls, and a nation destroyed.” But in the heat of the moment, his nerves jumbled and his brain tied into legalistic knots, he answers, “I think we need to get into the weeds of the DC law and look at the DC law cases where in those…”
Hurwitz interrupts him, and from there it’s all over the place, the three judges interrupting each other and Comar, but primarily it’s about the Westfall Act and whether or not Bush, Cheney, Rumsfeld and Wolfowitz were acting within the scope of their employment. It is, for a few minutes, comically reductive. At one point Hurwitz asks whether or not, if any of the defendants were injured, they would receive workman’s compensation. His point is that the president and his cabinet were government employees, and privy to both the benefits and the immunities of the job. The discussion fits the pattern of much of the day, where hypotheticals are entertained, mostly in the spirit of amusing brain teasers, like a crossword puzzle or a game of chess.
After nine minutes, Comar sits down and cedes the next five minutes to Doebbler. Like a relief pitcher getting a new crack at the opponent’s batting lineup, Doebbler starts from an entirely different place, and for the first time the consequences of the war are mentioned: “This is not your customary tort,” he says. “This is an action that destroyed the lives of millions of people. We’re not talking about whether or not a government official merely does something that might be within his terms of employment, within his office, that causes some damage…”
“Let me stop you for a second,” Hurwitz says. “I want to understand the difference in the argument you’re making. Your colleague says we should not find the Westfall Act to apply because they weren’t acting within the scope of their employment. Let’s assume they were for a moment. Are you making an argument that even if they were, the Westfall Act doesn’t apply?”
Doebbler’s five minutes fly by, then it’s the government’s turn. Their lawyer is about 30, lanky and loose. He doesn’t seem the least nervous as he rebuts Comar’s argument, almost entirely on the basis of the Westfall Act. Given 15 minutes to defend the government against charges of an unjust war, he uses only 11.
When the Ninth Circuit ruled against Trump’s travel ban on 9 February, much of the American media, and certainly the American left, celebrated the court’s willingness to step up and check presidential power with blunt judicial common sense. Trump’s White House, from its first day, had indicated a strong inclination toward unilateral action, and with a Republican Congress at his side, there was only the judicial branch left to limit his power. The Ninth Circuit did just that.
The next day, the Ninth Circuit finally ruled on Saleh v Bush, and here they did the opposite. They affirmed immunity for the executive branch, no matter the scale of the crime. Their opinion contains this chilling sentence: “When the Westfall Act was passed, it was clear that this immunity covered even heinous acts.”
The opinion is 25 pages long and addresses many of the points made in Comar’s complaint, but none of the substance. Again and again the court defers to the Westfall Act, and denies any other law supersedes it – even the multiple treaties that prohibit aggression, including the UN charter. The opinion ties itself in knots to justify its deference, but offers one example of an offence that might not be covered by the law: “A federal official would act out of ‘personal’ motives if, for instance, he used the leverage of his office to benefit a spouse’s business, paying no heed to the resulting damage to the public welfare.”
“That was a reference to Trump,” Comar says. The implication is that the execution of an unjust war is not prosecutable; but that if the current president were to use his office to help Melania’s brands, for example, then the court might have something to say about it.
It is the day after the ruling, and Comar sits in his apartment, still processing. He received the opinion in the morning, but didn’t have the energy to read it until the afternoon; he knew it was not in his favour and that the case was effectively dead. Saleh is now living in a third country as an asylum seeker, and dealing with health issues. She is exhausted and has no more room in her life for lawsuits.
Comar, too, is tired. The case has taken almost four years to get to the Ninth Circuit. He’s careful to express his gratitude that the court heard it in the first place. “The good thing is they took it very seriously. They really addressed every argument.”
He sighs, then enumerates the issues the court didn’t address. “They have the power to look at international law and recognise aggression as a jus cogens norm.” In other words, the Ninth Circuit could have recognised illegal war-making as the “supreme” crime, as the judges had at Nuremberg, subject to a different level of scrutiny. “But they didn’t. They said, ‘We could do that, but we’re not going to today.’ According to this ruling, the White House and Congress can commit genocide in the name of national security, and be protected.”
With the case at an end, Comar plans to catch up on sleep and work. He is finishing an acquisition deal with a tech company. But he remains troubled by the implications of the ruling. “I’m really glad the court is challenging Trump in the immigration context. But, for whatever reason, when it comes to war and peace, in the US it’s just boxed away in another part of our brain. We just don’t question it. We need to have a conversation about why we’re always at war. And why we’re always doing it unilaterally.”
The fact that the Bush administration executed the war without personal consequences emboldens not just Trump, Comar says, but aggression elsewhere in the world. “The Russians cited Iraq to justify [their invasion of] Crimea. They and others use Iraq as a precedent. I mean, the treaties and charters we set up establish a mechanism such that, if you want to engage in violence, you have to do it lawfully. You have to get a resolution from the UN and work with your partners. But that whole system is unravelling – and that makes the world a much less safe place.”