At 10 a.m. Wednesday, the Supreme Court will hear arguments in Ashcroft, et al., v. Iqbal (07-1015).  Solicitor General Gregory G. Garre, in an indication of the importance of the case to the government, will argue himself for the present and former officials of the Bush Administration. Representing Pakistani national Javaid Iqbal will be Alexander A. Reinert of Koob & Magoolaghan in Yonkers, N.Y.

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 By now, the Supreme Court is intimately familiar with many of the legal issues stirred up by the government’s response to the Sept. 11, 2001, terrorist attacks on the U.S. But, for the first time, in Ashcroft and Mueller v. Iqbal, it will confront an attempt to hold high-levels officials to account, personally, for their actions after the attacks. The question, though, is not whether they did engage in wrongdoing, but rather what proof former suspects must offer in order to proceed with their claims for damages against officials of Cabinet or near-Cabinet rank. Thus, it is, in legal terms, a case about the necessary ingredients of a lawsuit, not its outcome. That case, and others like it, have not gone to trial.

Background

In the months after the 2001 terrorist strikes, the FBI and other federal agencies pursued a massive investigation, inside the U.S. and elsewhere, to locate individuals involved and to gather information to head off further attacks. Agents reacted to some 96,000 tips supposedly providing information that would aid in the investigation, although later revelations indicated that many were exceedingly flimsy tips. In the early stages of that sweeping probe, the FBI rounded up thousands of individuals "“ most, if not all of them, were non-citizen Muslims or of Arab ancestry "“ and held them as suspects "of interest." Few criminal prosecutions resulted, but a number of those detainees were later exported.

Lawsuits by former detainees have arisen, including cases filed by some of those who have been deported. They have focused more on how the detainees were treated after being rounded up than on the legality of their original detention. The fate of those lawsuits is likely to depend, in significant ways, on the outcome of a case now before the Supreme Court, by former Attorney General John D. Ashcroft and then-and-still FBI Director Robert Mueller.

According to the detainees’ claims, individuals rounded up in the New York metropolitan area on suspicion of criminal or immigration violations were treated as individuals "of interest" if they were Muslims. They were then put into a special part of the Metropolitan Detention Center in Brooklyn, set up especially for those captured in the FBI sweeps. In that unit, their lawsuits contend, they were suspected to harsh conditions "“ severe physical and verbal abuse, unnecessary and abusive strip and body cavity searches, extended periods in solitary confinement, deliberate interference with their exercise of their Muslim faith, and interference with their attempts to communicate with lawyers. They also asserted that they were denied adequate exercise, nutrition and medical treatment.

The lawsuits not only were aimed at Detention Center officials with whom the individuals had direct conduct, but also at Justice Department and FBI officials at various levels, and, at the top of the hierarchy, John Ashcroft, Attorney General at the time, and FBI Director Mueller. Although other officials involved have sought to appeal to the Supreme Court, only the petition for review by Ashcroft and Mueller is to be heard, at this point, by the Justices.

In broad terms, the detainees’ lawsuits contended that Ashcroft and Mueller helped set up and to implement policies and procedures at the Detention Center, including discriminating against the detainees who were Arab Muslims, and were aware that such individuals were being held there and mistreated, solely because of their religious or ethnic background. The lawsuits claimed violations of the First, Fourth, Fifth, Sixth and Eighth Amendments to the Constitution. They sought damages under the Supreme Court’s 1971decision in Bivens v. Six Unknown Agents, and made a variety of claims of violations of the Alien Tort Statute, the Religious Freedom Restoration Act, civil rights law, and the Federal Tort Claims Act.

Before the cases moved forward to the evidence-gathering stage, Ashcroft, Mueller and others who were sued asked the federal judge to dismiss the lawsuits entirely, claiming, among other arguments, that they had "qualified immunity" to the lawsuits and thus they should not go any further. The District Court ruled that the constitutional claims and the claim of a conspiracy to violate civil rights could proceed, finding that the detainees had offered sufficient information to allow them at least to go through the "discovery" (evidence-gathering) phase, and perhaps up to the point of seeking summary judgment before trial.

The Second Circuit Court agreed, finding "“ as to Ashcroft and Mueller "“ that the lawsuits made adequate claims that those two officials had a discriminatory motive for their roles, and that, because of their positions, they were probably aware of and accountable for the discrimination and the abuse. The Circuit Court relied upon a standard that such allegations need only provide enough facts to make them "plausible." It said that, after a period of "carefully controlled and limited discovery," Ashcroft and Mueller could renew their pleas for outright dismissal, before a trial started.

Among the lawsuits was one filed by Javaid Iqbal, a Pakistani national and Muslim, and Ehab Elmaghraby, an Egyptian national and Muslim. Both were held in the special detention unit at the Brooklyn facility, and both contended that they were subjected to the abuse that was common in that unit. Both ultimately pleaded guilty to criminal charges "“ Javaid to identity fraud, Elmaghraby to using a counterfeit identification. Javaid was deported to Pakistan, and later filed his lawsuit, along with Elmaghraby. Before the Second Circuit Court ruling, Elmaghraby settled his part of the lawsuit as to the Federal Tort Claims Act claim, in return for a payment by the government of $300,000. Thus, as the case reached the Second Circuit and then the Supreme Court, it involved only Iqbal, who at the time he was picked up in November 2001 was a cable TV installer on Long Island.

In February 2008, Ashcroft, no long Attorney General, and Mueller filed their petition in the Supreme Court.

Petition for Cetiorari

Ashcroft and Mueller, in their petition independent from other officials who had been sued, raised two issues: may a lawsuit under the Bivens precedent against a Cabinet or near-Cabinet level officer proceed despite an immunity claim, if it is based on "conclusory allegations" of actually condoning or agreeing to allegedly unconstitutional acts by subordinates, and may such a high-level officer be held personally liable on a theory that, even if he lacked actual knowledge, he at least had "constructive notice" of the discrimination by subordinates.

Basically, the petition urged the Supreme Court to lay down a rule that, when a top-tier government official is claiming immunity to a personal lawsuit, the courts should apply a more rigorous standard for the claims that must be made for the suit to survive a dismissal motion. The Second Circuit, it contended, was wrong in accepting as sufficient a complaint that offered enough factual allegations as to make the claims of illegality plausible. The petition noted that the Circuit Court had confessed to struggling over the right standard to be used in the face of a qualified immunity plea. The Supreme Court’s precedents do not support a mere "plausibility" standard, and the Second Circuit ruling on the point conflicts with other courts of appeals’ rulings, it argued.

The petition, in keeping with Justice Department pleas in other war-on-terrorism cases in the courts, seeks to turn the Iqbal case into a serious test of immunity doctrine in the national security context. What was unfolding in late 2001 law, the two officials contended, was "an unprecedented national-security crisis." That is the setting, it went on, in which the protection of qualified immunity is "most acutely needed." The Circuit Court ruling, it asserted, would "largely eviscerate" those protections.

Iqbal’s attorneys countered that the Supreme Court should not even hear the case. Their response contended that there was no Circuit Court conflict on the first point "“ the level of factual claims needed to keep the case alive, and the split on the second issue "“ whether constructive notice is sufficient to justify the lawsuit’s proceeding "“ is not implicated because Iqbal’s complaint allegy es that Ashcroft and Mueller actually had knowledge of the abuse that was going on at the Detention Center on their watch.

The government’s appeal was supported by three former U.S. Attorneys General, two former Directors of the FBI, and the Washington Legal Foundation, a legal advocacy group that usually pursued conservative causes. They expressed fear that the Second Circuit ruling restricts qualified immunity doctrine "to such an extent that government officials will be unable to win pre-discovery dismissal of insubstantial constitutional claims."

The Court granted review of the case on June 16. The other officials who were sued along with Ashcroft and Mueller are treated as respondents, entitled under Supreme Court rules to file papers in the case. They, too, supported Supreme Court review.

Merits Briefs

Ashcroft and Mueller argued, in their brief on the merits, that the crucial issue in this case is whether, in a case involving top government officials serving during a time of crisis, the "plausibility" standard for making claims is, in its usual form, sufficient. Because officials at high rank are less likely in general to be personally involved in wrongdoing by subordinates "far down the bureaucratic chain of command," it will be harder to pursue a claim based on mere plausibility of their involvement, the brief argued. In that context, it added, "to survive a motion to dismiss, a plaintiff must plead facts sufficient to render the personal involvement and liability of such a high-ranking official plausible."

With the crisis context firmly in mind, the brief said, Iqbal’s "conclusory allegations" against Ashcroft and Mueller "are inadequate to suggest that [the officials] themselves were personally involved in the unlawful conduct of lower-level officials or otherwise violated clearly established law." Thus, the two key officers are entitled to immunity, the brief argued.

On the second point, the brief contended that it is entirely inappropriate, for high-level officials, to hold them to standards of supervisory liability developed for use in civil rights claims against state and local government officers. The Supreme Court, it asserted, has been wary of expanding the scope of officials’ liability for constitutional violations, and has not embraced the notion of vicarious liability. Iqbal’s case, it added, is focused on claims against lower-level officials, and there is no claim, beyond that of "constructive notice," that Ashcroft and Mueller were involved.

Ashcroft and Mueller again have the support, at the merits stage, of the former Justice Department officials. And the other officials sued have filed their own merits briefs, making similar arguments for lower officials who nonetheless had supervisory positions. "High-ranking non-cabinet supervisory officials…should be treated no differently. Because FBI officials are also subject to frivolous lawsuits, qualified immunity is as important to those supervisors as it is to cabinet-level officials," one of those briefs asserted.

Iqbal’s brief on the merits, at the outset, makes a renewed plea that the Court lacks jurisdiction to decide the opening question "“ on the adequacy of the pleadings against Ashcroft and Mueller. The District Court’s conclusion that Iqbal’s complaint was sufficient to allow the case to proceed, the brief said, is not a final decision. While there is an exception allowing pre-trial appeals in qualified immunity cases, the brief asserted that the exception does not apply here because the two officials do not seek review of the Second Circuit "determination that they behaved unreasonably in light of clearly established law." The brief went on to suggest that Ashcroft and Mueller have waived the question of their constructive knowledge in lower courts, so cannot assert it now.

In any event, the Iqbal document contends that the Ashcroft and Mueller brief is predicated on "hyperbole," because the District Court has only authorized discovery from them after all other discovery has been completed, and then only if that other discovery demonstrates a need to question Ashcroft and Mueller. The brief also defended the clarify of their allegations, saying they were quite sufficient. And it argued that the two officials are seeking a heightened pleading standard, based solely on their present or former rank in government. Federal procedure rules do not make such distinctions, the brief asserted.

Seven other detainees who were held at the Detention Center have filed an amicus brief supporting Iqbal. Their case is now proceeding in lower courts. They noted in their brief that a recent Justice Department probe of the post-9/11 roundup of Muslims found significant abuses, buttressing their claims of a policy in support of such mistreatment. Also supporting Iqbal are various advocacy groups for ethnic minorities, as well as civil liberties organizations and professors of court procedure.

The Court has scheduled argument in the case for 10 a.m. on Wednesday, Dec. 10.

Analysis

The temptation is strong to assume that the Supreme Court accepted review of the case, in its pre-trial stage, with the likely intent of overturning the Second Circuit. It was not deterred, at the petition stage, by Iqbal’s argument that the case had reached the Court prematurely, and that there were no issues worthy of the Court’s time at this point. While the Court retains the option after full briefing and argument to find it has no jurisdiction, that seems an unlikely prospect.

If it does go forward to a decision on the merits, observers will be watching closely to see whether the Justices are tempted to write a new rule requiring more rigorous pleading threshholds applying either to high-level officials only, or that only in times of "national security crisis." The Court majority, in other cases arising out of the "war on terrorism," has shown some deference to the national security emphasis that the government has asserted, but has not been uncritical in doing so. Indeed, its other war-on-terrorism rulings may well have taught at least some of the Justices to be at least moderately skeptical of the special priority asserted for Executive wartime powers.

If the Court sees the case as fundamentally one about the federal court rules in general, it may be tempted "“ while still ruling for Ashcroft and Mueller "“ to decide the case more modestly. It has shown some diligence in policing the claims made against officials seeking qualified immunity, and may do so again. At a minimum, it may well heed the plea of Second Circuit Judge Jose Cabranes, in concurrence in Iqbal’s case, for the Court to speak more clearly on pleading standards as a general matter.

The Court is expected to decide the case by next spring or early summer.

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