The case of the day is Saleh v. Bush (9th Cir. 2017). Sundus Shaker Saleh was an Iraqi who became a refugee during the Iraq War when Kurdish forces aligned with the United States forced her to leave her home in 2003. She sued former President George W. Bush, Dick Cheney, Donald Rumsfeld, Condoleezza Rice, Colin Powell, Paul Wolfowitz, and the United States. Remember those guys and gals? Saleh brought her claim under the Alien Tort Statute, claiming the defendants had committed the crime of aggression, a violation of customary international law. The government certified that the defendants had been acting within the scope of their offices, and therefore the government was substituted as the sole defendant under the Westfall Act. The court then dismissed the claim on account of Saleh’s failure to exhaust her administrative remedies under the Federal Tort Claims Act. Saleh appealed.

The Westfall Act provides that the sole remedy for “injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment” is a claim against the government, not against the employee.¹There are exceptions for so-called constitutional torts or when a statute specifically authorizes an action against the employee, but neither exception applied here. The United States has waived it sovereign immunity in such cases, but only if the plaintiff first presents his claim to the relevant government agency for an administrative adjudication. It seems Saleh did not present her claim in this way.

Saleh argued that the prosecution of the Iraq War was outside the scope of the individual defendants’ offices, because they had been planning the war before entering office. The court rejected this argument easily. More interestingly, she claimed that the invasion of Iraq and the prosecution of the war was not an “official” act, because it was contrary to a treaty obligation. She cites the Pinochet case, in which the House of Lords found that Chilean dictator Augusto Pinochet’s acts were not official because they violated the Convention Against Torture. That decision, though, asked whether the acts were official as a matter of international law, not domestic law. Morevoer, to the extent statutes like the Westfall Act should be construed to avoid conflict with treaties, that rule applies only when the statute is ambiguous. There was no ambiguity in the Westfall Act.

Saleh’s final argument was that aggression is a violation of a jus cogens norm, and that “Congress simply cannot immunize a federal official from liability for a jus cogens violation.” The court was willing to assume without deciding that agression is indeed a jus cogens violation. But Saleh’s argument ran aground on precedent. The court pointed to Siderman de Blake v. Argentina, 965 F.2d 699 (9th Cir. 2003), where it held that a foreign sovereign was immune under the FSIA from liability for violations of the Convention Against Torture. If Congress can immunize a foreign government, than surely it can immunize a domestic official, as the doctrines surrounding domestic sovereign immunity are ultimately derived from constitutional law as opposed to “mere” customary international law. No doubt some will be unhappy with how the court ranked constitutional law and international law here, and one could say that even if the sovereign immunity of the United States is constitutional, the immunity of government officials is not. But be that as it may, there’s nothing more orthodox than the assertion that constitutional law ranks above international law in our legal system.

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  There are exceptions for so-called constitutional torts or when a statute specifically authorizes an action against the employee, but neither exception applied here.