Supreme Court Detainee Decision May Not Block Suits Against Top Officials
Souter Leads Dissent in Tightly Decided Case
By Daphne Eviatar 5/19/09 6:00 AM
In denying the right of a Muslim Pakistani immigrant to sue former Attorney General John Ashcroft and FBI director Robert Mueller for his prolonged imprisonment and harsh treatment based on his religion and national origin, the Supreme Court on Monday raised the bar for plaintiffs seeking to sue high-level government officials for policies carried out by their subordinates.
Some in the media have reported that the decision revokes a detainee’s right to sue a public official for wrongful detention or mistreatment.
In fact, the ruling was tailored narrowly, leaving the door open to such suits in the future. Yet it remains unclear how specific the plaintiff’s claims must be for a court to allow the case to proceed against high-level officials who condone unconstitutional practices.
In a sharply divided 5-4 opinion, Justice Anthony Kennedy, writing for the majority and joined by the conservative wing of the court, wrote that Javaid Iqbal had not set out sufficient specific facts to present a plausible case. Iqbal had claimed that after the Sept. 11, 2001 terrorist attacks the Justice Department and FBI, led by Attorney General Ashcroft and FBI director Mueller, instituted a policy that resulted in the arrests and mistreatment of thousands of men based solely on their race, religion or national origin.
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Since filing his legal complaint, Iqbal’s lawyers say they’ve obtained much more evidence that Ashcroft and Mueller were actively involved in developing the policy that led to the discriminatory detention of Muslim immigrants, partly because they were allowed to proceed with the case against the lower level federal defendants. In addition, three reports from the Office of Inspector General issued in 2003 confirm many of the charges that after Sept. 11, pursuant to federal policies, Muslim immigrants were rounded up and detained for prolonged periods without justification in harsh conditions, denied access to lawyers, and physically and verbally abused. But Iqbal and his lawyers didn’t know the exact role of high-level Justice Department and FBI officials when they filed the case.
In fact, plaintiffs usually don’t have all the evidence when they file a case; the evidence is usually produced in the course of the litigation. “Rarely will you know the inner workings of what happened, especially where the government is trying to keep things secret, such as after 9-11,” said Alex Reinhardt, a lawyer representing Iqbal in his case and now a professor at Cardozo Law School. “If the decision is over-read, it could have significant ramifications,” he said on Monday. “If courts require up front that you know your whole case before you file, it would be impossible to bring most cases.”
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http://washingtonindependent.com/43501/supreme-court-detainee-decision-may-not-block-suits-against-top-officials