Tags: bush | terror | lawsuits

Court Ruling Could Protect Top Bush Officials From Terror Lawsuits

Tuesday, 19 May 2009 08:14 AM

By Warren Richey, The Christian Science Monitor

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The US Supreme Court handed a major victory to FBI Director Robert Mueller and former Attorney General John Ashcroft on Monday when it dismissed a lawsuit that sought to hold both men personally responsible for allegedly violating the constitutional rights of post-911 detainees wrongly suspected of involvement in terrorism.

In a 5 to 4 decision, the high court ruled that the complaint against Mr. Mueller and Mr. Ashcroft must be dismissed because the plaintiff failed to present sufficient facts to justify the lawsuit.

The case was being closely watched because it raised the question of whether high-level government officials can be held accountable for harsh anti-terror policies that allegedly violate constitutional rights carried out by lower level officials.

"A plaintiff must plead that each government-official defendant, through the official's own individual actions, has violated the Constitution," Justice Anthony Kennedy wrote in the majority opinion.

A plaintiff must "plead sufficient factual matter to show that [government officials] adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin."

In a dissent, Justice David Souter said he would allow the suit to move forward. "[The complaint] does not say merely that Ashcroft was the architect of some amorphous discrimination, or that Mueller was instrumental in an ill-defined constitutional violation; [the complaint] alleges that they helped to create the discriminatory policy."

The high court decision in Ashcroft v. Iqbal will help insulate high-level government officials – and former Bush administration officials – from similar war-on-terror lawsuits. At the same time, it will make it significantly more difficult for current or former terror suspects and their lawyers to obtain judicial oversight of their treatment by the US government.

Similar civil lawsuits are pending in the federal courts against former Defense Secretary Donald Rumsfeld and former Justice Department legal advisor John Yoo, among others.

In his dissent, Justice Souter said the majority decision undercuts the possibility of suing government supervisors for the unconstitutional actions of their subordinates. Such suits were authorized in a 1971 Supreme Court case called Bivens.

"Lest there be any mistake," Souter wrote, "the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely."

Javaid Iqbal's case

The decision arises from a lawsuit filed by Javaid Iqbal, a Pakistani Muslim, who sought to hold Mueller and Ashcroft accountable for harsh detention and interrogation methods used against him and other Muslim men arrested in New York City in the days and weeks after the September 11, 2001 terror attacks.

The Iqbal case began in November 2001 when Mr. Iqbal was taken into custody and falsely labeled a terror suspect "of high interest" by the Federal Bureau of Investigation.

Iqbal was held for 14 months – nearly half of them in a maximum security solitary-confinement cell – despite the lack of evidence of any involvement in terrorism.

His lawsuit charged that he was singled out because of his Muslim religion and Middle Eastern appearance. It said he was subjected to harsh treatment, including beatings, unnecessary body-cavity searches, and being held in an isolation cell with no ability to communicate with family, counsel, or other detainees.

Kennedy used his opinion to poke holes in the Iqbal complaint. Discrimination is not the most plausible explanation for many of the government's actions, he said. "On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts," he wrote.

"The complaint does not show, or even intimate, that petitioners purposefully housed detainees in [harsh prison conditions] due to their race, religion, or national origin," he wrote.

"All it plausibly suggests," Kennedy added, "is that the nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity."

Systematic mistreatment?

Many of the allegations in Iqbal's suit are consistent with the findings of an April 2003 report by the Department of Justice's Inspector General. The report criticized officials for establishing a system that punished detainees and treated them as guilty until proven innocent. The report said that many Muslim men were held under harsh conditions on baseless leads that the FBI took months to investigate and disprove.

The suit alleges systematic mistreatment, including being held 23 hours-a-day in a solitary-confinement cell with the windows painted over and the lights always on. Iqbal was given minimal bedding. The air conditioning was run in the winter, the heat turned on in the summer. He was subject to daily strip and body-cavity searches. The guards once forced him to submit to three consecutive body-cavity searches in a row. When he protested a fourth search, he was punched and kicked by the guards. By the time he was released, he'd lost 40 pounds.

Lawyers for Ashcroft and Mueller challenged their inclusion in the lawsuit, saying they had no personal involvement in the alleged mistreatment and no knowledge of Iqbal.

The complaint identified Ashcroft as a "principal architect" of the harsh detention policy and said that Mueller was instrumental in adopting and carrying out the policy.

Lawyers for Ashcroft and Mueller countered that Iqbal had failed to identify specific facts demonstrating their direct, personal involvement in the alleged unconstitutional actions.

A federal judge refused to dismiss the suit, permitting the initial stages of discovery to move forward. A panel of the Second US Circuit Court of Appeals in New York upheld that decision.

In reversing the Second Circuit on Monday, the high court remanded the case to allow the lower courts to decide whether to permit Iqbal to file a new, more precise complaint.

Kennedy was not entirely dismissive of Iqbal's complaint. "Respondent's account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct by some government actors," he said. But he added that the current pleadings were insufficient with respect to Ashcroft and Mueller.

Joining Kennedy's majority opinion were Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

In addition to Souter, Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer dissented.

© 2009 The Christian Science Monitor. All rights reserved. Reprinted Via Rightslink.

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