A significant test case on the right to hold high-level government officials legally responsible for the treatment of men of Arab descent rounded up immediately after the Sept. 11, 2001, terrorist attacks has now reached the Supreme Court.  The government on Wednesday filed a petition in Ashcroft, et al., v. Iqbal, et al. (docket 07-1015), raising two issues about the potential liability of former Attorney General John Ashcroft and current FBI director Robert Mueller for alleged violations of the constitutional rights of individuals taken into custody by the FBI in the weeks following the 9/11 attacks.  The petition and lengthy appendices can be downloaded here.

Ashcroft and Mueller have been trying to scuttle the claims against them, arguing that they have qualified legal immunity, since any misconduct that may have occurred to those seized by the FBI was by lower-level officials or employees.  The Second Circuit Court, in a ruling last June 14, cleared the way for the legal claims to proceed, at least through pre-trial stages. (Rehearing was denied Sept. 18.)

The case involves claims by Javaid Iqbal, a Muslim Pakistani who was held for a time in a maximum security facility in New York City after he was arrested by the FBI and immigration agents.  He is now back in Pakistan.  (A second individual, previously involved, Muslim Egyptian Ehad Elmaghraby, has settled his case, receiving a payment by the federal government of $300,000.)

Iqbal’s lawsuit does not challenge the legality of his initial arrest, or his initial detention in the New York City facility.  Rather, he contends that the conditions of his continuing confinement and his classification as a “high-interest” suspect based on ethnicity violated his rights. He argued that the sweep of Muslim men, reaching thousands of them as part of the official investigation of the 9/11 attacks, was based on racial and religious discrimination.

The Second Circuit’s decision allowing the case to proceed, not only against Ashcroft and Mueller, but against lower-level officials, has already been challenged in a pending petition filed by Dennis Hasty, former warden of the Metropolitan Detention Center in New York City. That case is Hasty v. Iqbal, docket 07-827.  Iqbal has waived a response to that appeal, but the Court has not yet scheduled it for consideration.

In the Ashcroft-Muller petition, two questions are raised: one tests whether a “conclusory allegation” of high-ranking officials’ condoning of misconduct by lower officials was sufficient to support a claim of constitutional violations, and the other tests whether high-level officials may be held personally liable for the acts of subordinate officials on the theory that they were aware of the discrimination.

The importance of those two issues, the petition says, is “amplified in the context of high-ranking officials charged with responding to an extraordinary national-security crisis like the September 11 attacks.”

The analysis used by the Second Circuit, the appeal argues, “will significantly undermine the protections afforded by qualified immunity by potentially subjecting high-level government officials to discovery and even a trial based merely on conclusory allegations that such officials knew of or condoned alleged wrongdoing by subordinate officials…It will do so even in the national-security context…”

Iqbal’s response to the new government appeal is due on March 7.

Posted in Ashcroft, Former ATT’Y Gen. v. Iqbal, Uncategorized