Inder Comar is a San Francisco lawyer whose usual clients are small tech startups: could he bring the only case against the planners of the 2002 war?

In the hall of the James R Browning courthouse in San Francisco, there was a digital sign listing that days lawsuits. At 9.30 am 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 occurrence involving a karaoke trademark infringement. At 10 am they would entertain Craig Yates v Sweet Potato Enterprise, Inc, a occurrence involving a disabled humen access to a Popeyes chicken franchise. And at 11.30 they would hear Sundus Saleh v George Bush et al, the only occurrence 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 intrusion and the countrys subsequent devolution into civil war. Once prosperous, their own families 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, western coast lawyer, Comar, whose mom 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: its either the various kinds of thing worn by a slick Texas oilman, or the outfit a misguided adolescent would wear to prom.

The day before, in Comars 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 resound below the supreme court, and hadnt consume, slept or exerted properly in weeks. Im still shocked were having a hearing, he said. But its 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 jobs. Comar was arguing that Bush et al were acting outside that protection. Further, they had committed a crime of aggressivenes 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 defense Donald Rumsfeld, former deputy secretary of defence Paul Wolfowitz and former national security consultant 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, perhaps they just gues, Why not give this guy his day in tribunal?

***

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 be determined by the Nuremberg tribunal. At Nuremberg, attorneys successfully was contended that, though the Nazi leadership who perpetrated the second world war were following orders and acting within the scope of official duties as stewards of the German nation, they were nonetheless liable for crimes of aggressivenes and criminal offences against humanity. The Nazis had invaded sovereign nations without provocation, and could not employ domestic laws to protect them. In his opening statement, Robert Jackson, the American supreme court justice and chief prosecutor, said: This trial represents mankinds desperate effort to apply the discipline of the law to statesmen who have utilized their powers of state to assault the foundations of the worlds peace and to perpetrate aggressiveness 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 intrusion 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 debate could be made that the US invasion of Iraq was unlawful.

Composite
The accused( from left ): Colin Powell, Donald Rumsfeld, Condoleezza Rice, Paul Wolfowitz, George W Bush and Dick Cheney. Photograph: AP, Getty, Reuters

Comar, by then a private attorney practising in San Francisco, wished to know 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 believed there was a real possibility of a lawsuit. He mentioned it to fellow lawyers and former profs. Some were mildly encouraging, though none supposed such a suit would go anywhere.

Meanwhile, Comar half-expected someone else to prosecute the occurrence. There are more than 1.3 million attorneys in America, and thousands of crusading non-profits. A few suits 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 household 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 girl 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 educator. The Salehs were adherents to the Sabean-Mandean faith, a religion that follows the training courses 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 go alone by Hussein. Whatever his crimes, he preserved an environment in which Iraqs many ancient faiths peacefully coexisted.

After the US invasion, order evaporated and religious minorities were targeted. Saleh became an election official, and she and their own families 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 fund , nor claim compensation. In May, he went to Jordan to take her witnes. What I built in years was destroyed in one minute in front of my eyes, she told him. My work, my posture, my parents, my whole family. Now I simply want to live. As a mom. My children are like a flower. Sometimes I cant water them. I like to hold them, but I am too busy trying to survive.

***

These are dangerous periods, Comar told me on 11 December last year. He had not planned to attain his example about Trump, but his first hearing was taking place a month after the election and the implications for the misuse of power were grave. Comars 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 was set 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 cant do in terms of the intrusion of sovereign nations, it would seem to be now.

For Comar, the best possible outcome at the next days hearing would be that the court sent the instance down for an evidentiary hearing: a proper trial. Then he would have to prepare an actual example 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 Comars lawsuit, and of the governmental forces defense. In essence, the act protects federal employees from litigation stemming from actions within their scope of duty. If a postal employee unknowingly delivers a bomb, he or she cannot be sued in a civil tribunal, 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 example, though, courts have agreed to the substitute of the US as the named defendant, instead of him. The implicit reasoning is that Rumsfeld, as secretary of defense, was tasked with defending the nation and, if necessary, planning and executing wars.

U.S.
President Bush speaks before authorising US use of force against Iraq, in October 2002. Photograph: William Philpott/ Reuters

But this is exactly what the Nuremberg tribunal addressed, Comar told me. The Nazis constructed the same debate: that their generals were tasked with waging war, and they did so, that their soldiers were following orders. Thats the argument that Nuremberg dismantled.

Comar lives in nearly spartan frugality in a studio apartment in downtown San Francisco. The position is of a wall of cement covered with moss and ferns; the bathroom is so small, a guest can wash his hands from the foyer. On the shelf next to his bed is a volume entitled Eating The Big Fish.

He does not have to live this style. After statute school, Comar spent four years at a corporate law firm, working on intellectual property suits. He left to create his own firm, so he could divide his time between social justice cases and those that would pay the bills. Twelve years after graduating, he still carries significant debt from his statute school loans( as did Barack Obama when he took office ).

When we spoke in December, he had a number of other pressing occurrences, but had been preparing for the hearing for virtually 18 months. As we speak, he constantly looked out of the window, towards the wall of moss. When he smiled, his teeth gleamed in the flat lighting. He was earnest but quick to giggle, enjoyed discussing ideas and often said, Thats a good topic! He looked and spoke like the tech entrepreneurs he typically represents: thoughtful, pacify, inquisitive, with a little bit of the why-not-give-it-a-shot? stance essential to any startup.

Since his initial filing in 2013, Comars case had gale 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 supporting from eight prominent lawyers, each of whom added their own amicus briefs. Notable among them was Ramsey Clark, former us 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 writes 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 wasnt just some crazy guy in San Francisco.

***

Monday 12 December is cold and blustery. The courtroom where the hearing will take place be found at Mission Street and 7th Street, less than 30 metres from where narcotics are openly bought and eaten. With Comar is Curtis Doebbler, a statute prof 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 mornings appellants are expected to arrive by nine and listen respectfully to the rest of the mornings cases. The courtroom is small, with about 30 seats for spectators and participants. The magistrates 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 rostrum where the attorneys present their debates. It is bare but for two objects: a piece of paper published with the judges names Hurwitz, Graber and Boulware and a device, the size of an alarm clock, with three rounded suns atop it: green, yellow, red. The clocks digital showing is set at 10.00. This is the timer, which counts backward to 0, that will tell Inder Comar how much hour he has left.

Its important to explain what a hearing in front of the Ninth Circuit means and doesnt mean. On the one hand, its 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 occurrences. Instead, they can upheld a lower court ruling or they can remand a occurrence( send it back to a lower tribunal for a real trial ). This is what Comar is seeking: the human rights of 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 lawsuit. The plaintiff is given 10 minutes to explain why a lower courts ruling was incorrect, and the defendant is given 10 minutes to explain why that previous ruling was simply. In some instances, ostensibly when an issue is particularly important, cases are given 15 minutes.

The plaintiffs in the karaoke suit, among other instances that morning, have been given 10 minutes. Comar and Salehs case has been given 15. Its 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 days proceedings begin, and to anyone without a law degree, the cases before Comars do not stimulate much sense. The lawyers are not presenting evidence, calling witness and cross-examining. Instead, each time a case is called, the following ensues. The lawyer steps up to the pulpit, sometimes turning to the audience for a last boost of fortitude from a colleague or loved one. Then the lawyer brings his or her papers to the pulpit and carefully arranges them. On these pages surely on Comars is a written outline, tidy, deeply researched, of what the lawyer will say. With the papers arranged, the lawyer indicates she or “hes 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 route 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 dont want to hear speeches. Theyve 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 speech, semantics, technicalities.

San
Inder Comar with Sundus Shaker Saleh at her home in Jordan in May 2013

The magistrates have very different styles. Andrew Hurwitz, on the left, does most of the talking. Before him is a tall beaker of Equator coffee; during the course of its first case, he finishes it. Thereafter, he seems to be buzzing. As he interrupts the lawyers, he turns repeatedly, reflexively, to the other magistrates, 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 suit, he offers that he is an enthusiast. Im 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 Hurwitzs glances. She stares straight ahead for the better part of 3 hour. She is fair-skinned and her cheeks are rosy, but her affect is severe. Her hair is short, her glass constrict; she stares each lawyer 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, entailing he is not a permanent member of the Ninth Circuit. He smiles every so often but, like Graber, has a style 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, its hard not to feel anxious for him and his neat two-page outline.

The light runs green and Comar begins. He speaks for just over one minute before Graber interrupts. Lets 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 dont disagree with that as a general principle, Comar says.

OK, Graber says, so whats different about this particular thing?

Here, of course, is the place where Comar had intended to say, What builds 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 the least half a million people. Half a million soul, 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 its all over the place, the three judges interrupting one another and Comar, but mainly its 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 laborers compensation. His phase is that the president and his cabinet were government employees, and privy to both the benefits and the immunities of the job. The debate fits the pattern of much of the working 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 concede the next five minutes to Doebbler. Like a relief pitcher get a new fissure at the opponents 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. Were not talking about whether or not a government official simply 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 debate youre inducing. Your colleague says we should not find the Westfall Act to apply because they werent acting within the scope of their employment. Lets assume they were for a moment. Are you making an argument that even if they were, the Westfall Act doesnt apply?

Doebblers five minutes fly by, then its the governmental forces turn. Their lawyer is about 30, lanky and loose. He doesnt seem the least nervous as he refutes Comars argument, almost entirely on the basis of the Westfall Act. Given 15 minutes to defend the government against charges of an unjust war, he utilizes only 11.

***

When the Ninth Circuit ruled against Trumps travel ban on 9 February, much of the American media, and surely the American left, celebrated the courts willingness to step up and check presidential power with blunt judicial common sense. Trumps White House, from its first day, had indicated a strong inclination toward unilateral action, and with a Republican Congress at his side, “theres only” the judicial branch left to limit his power. The Ninth Circuit did just that.

Donald J. Trump (@ realDonaldTrump)

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

February 9, 2017

The next day, the Ninth Circuit eventually ruled on Saleh v Bush, and here they did the opposite. They confirmed immunity for the executive branch , no matter the scale of such crimes. Their sentiment 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 built in Comars complaint, but none of the substance. Again and again the court defers to the Westfall Act, and denies any other law supplants it even the multiple pacts that proscribe aggressivenes, including the UN charter. The sentiment 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 use the leverage of its term of office to benefit a spouses business, paying no heed to the resulting damage to the public welfare.

That was a including references 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 Melanias 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 didnt have the energy to read it until the afternoon; he knew it was not in his prefer 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 depleted and has no more room in their own lives for lawsuits.

Comar, too, is tired. The occurrence has taken almost four years to get to the Ninth Circuit. Hes 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 didnt address. They have the power to look at international law and recognise aggressivenes as a jus cogens norm. In other terms, the Ninth Circuit could have recognised illegal war-making as the supreme crime, as the magistrates had at Nuremberg, subject to a different level of scrutiny. But they didnt. They said, We could do that, but were 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 lawsuit at an end, Comar plans to catch up on sleep and run. He is finishing an acquisition deal with a tech company. But he remains troubled by the implications of the ruling. Im glad you did the court is challenging Trump in the immigration context. But, for whatever reason, when it comes to war and peace, in the US its only boxed away in another part of our brain. We only dont question it. We need to have a dialogue about why were always at war. And why were always doing it unilaterally.

The fact that the Bush administration executed the war without personal outcomes 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 entail, 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 induces the world a much less safe place.

Read more: www.theguardian.com