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 lobby of the James R Browning courthouse in San Francisco, there was a digital sign listing that days 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 mans 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 countrys 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: its 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 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 rung below the supreme court, and hadnt eaten, slept or exercised 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 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 mankinds desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the worlds 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.
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