07/27/16 – D. Inder Comar – The Scott Horton Show

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Introducing Inder Komar, a lawyer who runs the website WitnessIraq.com.
Komar Law is the name of the firm.
Welcome to the show.
How are you, sir?
Doing very well.
How are you?
I'm doing very good.
I appreciate you joining us on the show.
And it seems like you have some, well, as it says here, exciting news to tell us.
The Chilcot Report was released in Great Britain, what, last week, right?
Or two weeks ago now?
July 6th, that's right.
July 6th.
Okay.
And so this was the internal parliamentary report, long delayed, into how Tony Blair got Britain into Iraq War II in alliance with the United States.
And now that this is out, you think that you have found some statements in there, some evidence in there that is applicable to a lawsuit that you have in the Ninth Circuit federal courts here in the United States?
Yes, that's absolutely right.
So we filed a lawsuit on behalf of my client, who's an Iraqi mother, an Iraqi woman, who currently has refugee status in Australia.
And in 2013, she filed a lawsuit in the Northern District of California, so in federal court, against the highest ranking members of the Bush administration.
So that includes George W. Bush, Richard Cheney, Donald Rumsfeld, Condoleezza Rice, Colin Powell, and Paul Wolfowitz.
So she sued those six people, alleging what's called the crime of aggression.
And that lawsuit was dismissed in December 2014.
And we filed a notice of appeal a month later.
And we've been on appeal, basically, since January of 2015.
And what we did is, just on Friday, is submitted a request to the court attaching what we thought were the most compelling excerpts from the Chilcot Report, and explaining to the court that this was further evidence of wrongdoing that had been committed by these high ranking officials, and why it was important for the case to proceed.
Okay, and so what was it that you found so compelling in here?
Well, that's a great question.
And just as some background, we're on appeal on the basis of immunity.
And so the district court had dismissed our case in December 2014, saying that they weren't even going to reach the allegations about the legality of the war, because these high ranking people are all immune.
And the basis of that immunity is what's called the Westfall Act, which is a federal law that basically says that if you're suing a government, a person who was in the government for, you know, alleged wrongdoing, if they were acting within the lawful scope of their employment, then the lawsuit cannot proceed.
And so the district court said, well, based on what you've alleged, it's not enough to say the war was illegal.
It's not enough to say that there was misrepresentations of fact.
They were planning a war.
They were acting within the lawful scope of their authority.
And so that's what we're contesting on appeal.
And what we uncovered from the Chilcott report were, I would say, three different buckets of information that we thought were extremely compelling, you know, to talk about to the court.
So, you know, the first kind of bucket were, you know, were the actual conclusions of the report itself.
So the Chilcott report was composed of, was composed by these privy counselors in the United Kingdom, and they don't really have an analog in the U.S., but privy counselors in the British history go back, you know, about a thousand years.
These are people who were appointed by the crown to speak and advise directly to the sovereign.
And so this is part of this long tradition in the UK of appointing people who are specifically entitled to tell the sovereign, you know, this is what happened.
And so what these privy counselors discovered is that essentially the war was not a war that had to happen.
I mean, that's something that I think most people already knew.
But to hear that from this really prestigious body, you know, that had complete independence to look at the evidence and who's directly advising the British government, I think, I think is a huge milestone to hear that from directly from them.
And so we pulled out some of the excerpts.
There's a whole chapter in the report about the legal analysis.
So how did the government conclude this was legal?
And there's about 160 pages where they go into that.
They talk about the discussion amongst the lawyers and how the lawyers basically, up until through March, the consensus was that the war was going to be illegal.
And then in and around March, so in the last month, basically before the war, the analysis flipped.
And there's a whole discussion of how that happened.
That's quite fascinating from a legal historical point of view.
So that's one bucket of information was just the conclusions of the report.
The second bucket was the actual underlying evidence that they looked at.
So, for example, we submitted letters and memos that Blair sent to Bush.
We don't have what Bush sent to Blair, but we have what Blair sent to Bush about the run up to the war, which makes for fascinating reading.
And, you know, it's very clear that, you know, by October of 2001, so one month after 9-11, it's very clear that Blair and Bush were specifically discussing how are we going to enter what they called phase two of this war, which is the invasion of Iraq.
Then the third bucket of information were these essentially conclusions of law by UK legal jurists and scholars who opined to the Chilcot Report to the Chilcot Committee that the war was illegal.
And so that's actually very compelling for our case because we can take those opinions and submit them to the court as essentially conclusions of international law by outside experts.
And, you know, this is the first time that we've seen such a conclusive body of legal opinion that has said unequivocally that the war was illegal under international law.
Right.
And it's not the French, it's the Brits.
So it's OK to cite them.
So that's right.
Exactly.
Yeah.
OK.
Now, so there's so much going on here.
So let's talk about U.N. Security Council Resolution 1441, which was passed, I guess, in, help me, was it September or October of 2002?
That's right.
The late fall of 2002.
And it said, look, Saddam, you better let in the inspectors and do everything we say or else there's going to be serious consequences was as far as it went.
And at the time, it seemed agreed.
And I think this is what you're alluding to among the lawyers in Britain.
I meant to say and go back a little bit.
Colin Powell actually forced the issue inside the administration.
It's been, I think, credibly reported.
Dick Cheney led the argument that we shouldn't even go to the U.N.
We should just attack now.
And and Powell convinced Bush that, hey, that would be illegal and we better be careful.
We better go to the go the U.N. route.
And that was, as Paul Wolfowitz said, for bureaucratic reasons, we settled on weapons of mass destruction to be the cause of Spelly.
But then.
So when spring came around, they never did get their second resolution.
They wanted to, but they couldn't get it.
And they went ahead and launched the war anyway.
And this is where you're telling me the British lawyers.
And I don't I don't know if we know this about the American lawyers yet.
We know about their torture memos and stuff yet.
But I don't know exactly what they wrote about this to Bush.
But but you're telling me that the U.K. lawyers told Tony Blair.
Yeah, man, no, you can't do it without a second resolution.
You can't do it without a second resolution.
You can't do it without a second.
Oh, you know what?
You can go ahead and do it without a second resolution.
At the very last minute, they flip flopped and changed on that.
And now so you're a lawyer.
Do they have any kind of compelling argument at all?
Or this was pure politics?
Well, you know, that's fascinating.
So when you read this chapter, chapter five of the Chilcot Report, it's really kind of interesting because it's almost Shakespearean.
I mean, there's this dialogue taking place between Michael Wood or Sir Michael Wood today and Lord Goldsmith, who, you know, was attorney general of the United Kingdom at the time.
And, you know, various members of the British Cabinet about the legality of the war.
And it's interesting you mention about, you know, what the U.S. lawyers had said, because again, that was not included in the Chilcot Report, but it's certainly referenced.
So Lord Goldsmith apparently went to the United States and he had a meeting with Dick Cheney.
And it's alluded to basically an army of U.S. lawyers were there when he went to meet.
And when he came back, you know, he said, well, the Americans had this view and I think it could be I think it could be arguable or it's reasonable that the Americans view, but the legality is is we could rely on.
And he doesn't ever say what the Americans view was, but what what what they came up with basically was this idea that some of the older UN Security Council resolutions were still operative and that you could kind of go back in time to some of these older ones so that if Saddam, if the Hussein regime was not complying with the with the inspections, then it was a breach of the ceasefire.
It was a breach of all these older resolutions that essentially would have permitted in it, you know, you know, it would have permitted the countries to argue that they were back into a state of war and would have permitted an invasion.
So that's basically the analysis they came up with.
And, you know, people were, you know, thought that was, you know, that was who essentially, you know, there's a there's a big meeting amongst the lawyers, you know, where their jaws are like, are you serious?
Are we going to allege that?
I mean, basically, you know, it was like a 15 percent argument, right?
Like you wouldn't get laughed at in a court to say that, but you get a lot of skeptical eyebrows.
But they decided that that was the argument they were going to run with because that was really the only argument they had.
Right.
Even though Saddam wasn't in material breach at all.
They kept saying I remember Shepard Smith literally crying on TV saying they're in material breach.
They're in material breach.
Let's start the war now.
What are we waiting for?
And yet they weren't in material breach.
They gave up everything.
Bush's only argument, at least I remember on TV at the time, was we know what disarmament looks like.
They bring all their weapons to a parking lot somewhere and say, here it is.
We fess up.
You got us.
And since they haven't done that, that means they're still hiding it.
But meanwhile, Saddam's government was telling the U.N. inspectors, go wherever you want.
They were left arguing that he must have a secret chemical weapons factory directly under his palace where he sleeps at night because that was the only place he wouldn't let them inspect.
Well, right.
So and that this comes up in the Chilcot report, too.
It's fascinating because Lord Goldsmith says, look, you know, I've just given you this argument.
This is the best I can do.
But in order to make this work, we have to have some really compelling facts.
So if you want to use my argument, you know, it's important that you send them like a memo to the file saying this is this is these are the breaches that we've discovered of the resolution.
And so what happens is on the eve of the war, you know, Goldsmith just gets a Lord Goldsmith just gets a memo.
I think I forget who it is in the cabinet that it's a one sentence conclusion that just says we we find that Saddam Hussein or the government of Iraq is in breach of Section 1441 or excuse me, Security Council Resolution 1441.
But it doesn't go into what those breaches were.
And so that was, you know, in kind of the front page on July 6th when the Chilcot report came out, when, you know, kind of a lot of the newspapers were saying that there was a huge rush to war.
That's what they were a large part referencing was that it was, you know, when the British government decided they had their legal basis, it was essentially based on this 15 percent argument, you know, from Lord Goldsmith, who wasn't very certain about it.
And then a one or two sentence conclusion from the government that there were breaches without identifying what those breaches were.
So that was essentially the basis for the war, which is which is really shocking from a legal point of view.
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And now, OK, so I want to get back to this this threshold you got across to to strike down immunity in a second here, but I just need to know whether I'm just curious, I guess, whether the early start of the air war is part of your argument as well, because, you know, we just ran on antiwar dot com an article by Michael Smith, a.k.a.
Mick Smith, formerly with The Sunday Times in London.
He's the guy that broke the story of the Downing Street memos where they admitted that, you know, the Americans are fixing the facts around the policy from July of 2002.
And he says that there's one huge thing that Chilcot missed, and that is that the war started not in March of 2003, but in May of 2002.
And for 10 months, there was a vastly expanded air war against Iraq in preparation for the ground war.
Really no different than what happened in January of 1991 before the ground invasion there just over a longer period of time.
In fact, I have an interview from 2005 with a young man who was helping arm the planes on the aircraft carriers in 2002 as they expanded their mission, including, I think he said on one day in October of 2002, there were a couple of hundred sorties in just one day.
Yeah, that's really remarkable.
I actually I don't I don't know where I read it, but I feel like I read a Mother Jones article or something like that very recently in the last week or two where they were talking about this exact thing, this this kind of early air war that had been commenced in 2002, I think, under the cover of the no fly zone.
Right.
So they were they were using the no fly zone as the basis for that.
So we don't actually get into that in the suit.
What we the allegations that that the basic allegations for us are go back to 1998 with the Project for the New American Century.
And what we what we discuss in our lawsuit is that's how far back we go.
We go back to 98 and we talk about the statements from Donald Rumsfeld and from Paul Wolfowitz, who are essentially proto blogging.
I mean, at the time on this website of theirs that we have to invade Iraq and we have to overthrow Hussein and it has to be done in a military manner.
And so what we say is that once they came to power, they they they they carried with them this intent.
So they had this intent to do this.
And once they came into office, they they they looked for ways essentially to invade Iraq.
And there's a very sparse record, but an early record that they were looking to do this before 9-11.
You know, they were looking for reasons in the in the cabinet meetings.
And, you know, how can we do this, basically?
And then once 9-11 happened, we allege that that was the cover.
They had the perfect excuse now to kind of focus everyone's attention on Iraq.
And and then that was what led to the invasion.
And then, you know, the invasion itself was illegal.
And so those are the facts that we have.
And for us, it draws a compelling story about bringing in this preexisting motivation and intention to do this into office using 9-11 as a cover, coming up with these two fraudulent bases, one that Hussein was in collaboration with al Qaeda, which is totally not true.
And then the second one being the weapons, which it seems not to have been the case either.
And then culminating in the act of the act of war, which was not which was done illegally under international law and national law, we say as well.
And so those are the allegations in the case.
But, you know, this interesting thing about the air where you mentioned is that essentially as more time comes out, goes on, the more information gets revealed.
So, I mean, the Chilcot report itself is something that, you know, here we are talking, you know, you know, it's been more than a decade since the war.
And, you know, we're still getting, you know, information is still coming out as to what really happened back then.
And so it's really interesting to think about what where we'll be five years from now and what will be revealed.
And, you know, the hope is that we'll just be able to, you know, submit more of that to the court as time goes on.
But but yeah, that that air war stuff is certainly fascinating and I think would point again to this intention that they were just going to invade regardless of what of the of the inspections regime or or anything like that.
Well, you know, I think people remember this made more headlines that Obama used a drone to bomb Pakistan on his third day in office, killed only innocent civilians with that one, by the way.
But George W. Bush, he started bombing Iraq.
I'm trying to remember now.
It's been so long, but it was, I think, within the first three weeks of being president.
He launched a massive attack again under the cover of the no fly zone, but making himself very clear from the beginning of what he was doing.
Of course, Paul O'Neill, the first Treasury secretary, said he couldn't believe it.
The first cabinet meeting, the whole the only discussion was what are we going to do to start a war against Saddam Hussein for crying out loud?
Yeah, that's exactly right.
And we cite we cite to him in the case, actually.
So he's one of the data points that we brought to the court is and, you know, it's really important that we cite to these and Paul O'Neill was secretary of the Treasury.
Right.
I mean, it's not like he was some guy in the hallway.
Right.
So I think he ran Alcoa here in Texas.
I mean, he's he he should have been trustworthy to be part of that cabinet.
You know what I mean?
It's not like he was some liberal professor that got that Bush got stuck with somehow or something.
Right.
Exactly right.
So, you know, again, it is as more time comes, you know, goes on and you look back, it's just the record just becomes increasingly dark, you know, and the facts just become so ugly and overwhelming about what happened.
And I think, you know, the way the way I think about it is that we're eventually we're all going to wake up from that nightmare, you know, and we're going to be confronted with what really happened.
And when we look back, especially around that time, I mean, it was it was I mean, there was it was a crime.
I mean, that's what we allege is that the war was criminal.
It was it was it was a criminal act under international law.
It's called the crime of aggression.
It was the supreme crime that the Nazis committed in in their wars.
You know, it's it's it's a it's it's the going to war or invading another country without a legitimate legitimate legal reason that you have to have.
And the reason it's such a it's it's such a supreme what international law calls it the supreme crime, because it leads to so much of the other crimes.
Right.
So the torture and war crimes and all the rest genocide is only possible when you've launched this illegal war.
And I think what we're witnessing today in the Middle East is unfortunately the the consequence of having done all that, you know, in 2003.
Yeah.
All right now.
So real quick here at the end, you have this very high threshold, never mind what it says at the end of the First Amendment about the right of the people to sue their government petition now simply means write your name on a piece of paper and beg as though that was what the First Amendment was addressing.
But anyway, so they have so much immunity.
You mentioned a law, but there are 10 million court decisions to where all of these government employees protect each other from the rule of law.
And so what kind of threshold or how badly are you going to have to impress this judge for him to say that, yes, Donald Rumsfeld and George W.
Bush are subject to prosecution under the rule of law in the United States of America?
So that's a great question.
You know, you know, and I want to be clear, the precedent hasn't been good.
So, you know, the precedent that's been out there has been in the last decade was the torture lawsuits against Donald Rumsfeld.
And this is that was the same law.
The courts used this Westfall Act to immunize Donald Rumsfeld and said, look, you know, he tortured and whatever it is, but he's immune.
And that's that's all there is to it.
And nothing prevents a criminal prosecution one day.
But for purposes of a civil lawsuit, this is as far as it goes.
And so, you know, similarly, we're in the same boat where we're at.
We're alleging these civil causes of action.
I think, you know, again, it's about bringing as much as possible to the court.
And what we're also alleging, which I think makes this case very different than the Rumsfeld lawsuits, is this kind of preexisting agenda, this, you know, this ideological agenda that some of these people had where the invasion and not just not just regime change, but it was specifically tailored to a military overthrow of Saddam Hussein.
That's what this was about.
It wasn't about, you know, supporting rebels or it wasn't about, you know, making sure there were some elections or it wasn't about getting the U.N. involved.
Those are all maybe other forms of regime change.
This is not what these not what these people were advocating.
They were specifically advocating as early as 1998, the military overthrow of Saddam Hussein.
And so when you start, you know, you know, using, you know, advocating for that, I mean, it's a free country.
You can advocate for whatever you want.
But once you once you come into a position of power and you start to exercise those intentions, you know, you know, basically we're telling the court and there's case law out there that we recited to that says, you know, once you come into employment or you come into power with this preexisting agenda, you don't get to hide behind your employer anymore.
You know, if if if you get the keys to the company car and you go on a frolic and detour and you crash the car, you know, the company, you know, the and someone dies, you know, the employer is not liable in those situations.
And so we're trying to make that analogy.
But I think it's, you know, I think in the last decade or so, the judicial system has been very hesitant.
And I think they've been giving a lot of what I would say undue deference to the executive branch in terms of these matters.
There's a lot of case law that says that, you know, executive power has to be limited and constrained in times of war.
I mean, going back all the way to the Truman era, you know, the great case that we cite, you know, involving President Truman, there's a lot of cases coming out of the Vietnam War era where courts did bother to look at executive conduct.
And we cite to all that.
But I think, you know, it's going to have to take the judges themselves that are going to have to be, you know, interested in looking at this issue and really thinking about their role as judges in the framework, the constitutional framework we have where they have to play a role.
Right.
I mean, that's the whole point of checks and balances is when the other branches start to go crazy, you know, you know, there are these other branches that are that come in and check them and hold them in place to prevent tyranny.
And, you know, we were living in an era where the executive branch has become so powerful in matters of war and peace and has so much authority that it's taken essentially for itself without any oversight from anybody.
And now we're living in an era where, you know, it seems to be getting worse.
Right.
Where, as you mentioned, where, you know, each each executive, you know, the each new executive uses as precedent the actions of the previous executive to enlarge the scope of their ability to engage in war making or to use militarized drones, for example, in ways that would have been inconceivable, you know, 10 or 15 years ago.
But because the public becomes inured or doesn't care, you know, they get to they get to increase their power.
So I think what it's going to take is for judges, you know, first to you know, we have to educate them about this crime of aggression, about what what the rule of law is in the U.S. and internationally.
But also they're going to have to be a little less hesitant to to maybe examine the fact that the executive branch has been involved in a lot of wrongdoing in the international arena.
And they're going to have to become comfortable with acknowledging that and maybe starting to to investigate that when when plaintiffs come.
So I think that's that's what this is about.
I mean, in terms of the facts, you know, they are what they are.
And like I said earlier, the facts every day just get a little uglier about what happened in Iraq.
So I don't think I think in terms of a case about executive power with respect to war making, this is a good case for that.
I mean, the facts here are very ugly.
But I'm sorry, I blew that question, too, because I conflated criminal charges with the ability to sue.
But anyway, everybody knew what I meant.
Yeah, yeah.
But yeah, that's a very long answer, I think.
But I think, you know, I think the judges, I think if we're lucky and we get a good panel, that's at least going to have this dialogue.
I think that's a great start.
Yeah.
All right.
Well, listen, good luck with it.
You know, you certainly have a case if you ask me.
So I'm sure we'd like to see, you know, this play out better in the future.
And as you said, it keeps getting worse.
More and more evidence keeps coming out.
So maybe things will change at some point.
I hope so, Scott.
I hope so.
All right.
Well, thanks very much for doing the show today.
I really appreciate it.
OK, take care.
Have a great day.
You, too.
All right.
Bye.
All right, so that's Inder Komar.
And the website is WitnessIraq.com, litigating the U.S. invasion of Iraq.
WitnessIraq.com.
And the article is Chilcot Report submitted to the Ninth Circuit.
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