Monday, May 18, 2009

The Washington Post reported today on the Iqbal case alleging that former attorney general John Ash croft and FBI Director Robert Mueller knew that the prison guards holding Arab Muslims swept up after the September 11 attacks were torturing them because they were Arabs and/or Muslims.

The Supreme Court ruled today that former attorney general John Ashcroft and FBI Director Robert Mueller may not be sued by Arab Muslims who were seized in this country after the 2001 terrorist attacks and allege harsh treatment because of their religion and ethnicity.  The court ruled 5 to 4 that the top officials are not liable for the actions of their subordinates absent evidence that they ordered the allegedly discriminatory activity. The decision followed the court's ideological split between conservatives and liberals, with Justice Anthony M. Kennedy siding with the conservatives and writing the opinion.

The suit against Ashcroft and Mueller was brought by a Pakistani citizen living legally in the country when he was arrested in the months after the Sept. 11, 2001, terrorist attacks on the World Trade Center and Pentagon.  Javaid Iqbal was held in solitary confinement in a section of a Brooklyn prison known as Admax-Shu, for "administrative maximum special housing unit," where he said he was subjected to numerous beatings and strip searches. He was convicted of document fraud and deported to Pakistan but cleared of any involvement in terrorism. An Egyptian Muslim who was also part of the suit, Ehad Elmaghraby, settled with the government for $300,000. Similar suits are pending.

Iqbal's case names prison guards, FBI agents, the warden of the prison -- who was the subject of a critical report from the Justice Department inspector general -- up to Ashcroft, who was attorney general at the time of the attack. Iqbal says policies formulated by Ashcroft and Mueller singled him out as a suspect of "high interest" solely because of his nationality and religion.

The U.S. Court of Appeals of the 2nd Circuit in New York acknowledged that top government officials carry immunity but decided it was at least "plausible" that Ashcroft and Mueller were responsible for, or knew about, the discriminatory actions Iqbal alleges. It said the suit could go forward with evidence-gathering from the lower-level officials in the case, and then a judge could decide whether there was reason to keep the two top officials in the suit.

But Kennedy said that decision was wrong, and Iqbal had no plausible claims that Ashcroft and Mueller knew of or put in place a discriminatory policy. His claims "amount to nothing more than a formulaic recitation of the elements of a constitutional discrimination claim," Kennedy wrote.  Kennedy said it was logical that the largest law enforcement investigation in the nation's history focused on Arab Muslims because of the identities of the Sept. 11 attackers.  "It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims," he wrote.Similarly, it was not discriminatory that Iqbal and others were detained in a maximum security prison, Kennedy said. "All it plausibly suggests 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."

Justice David H. Souter wrote for the dissenters. He said the conservative majority went further to insulate public officials from civil liability than Ashcroft and Mueller had even asked for. "The court denied Iqbal a fair chance to be heard," Souter wrote.

Download Immunity decision

This case may not seem important from an environmental standpoint.  But I think it is. The United States has long been the biggest polluter in the United States.  We primarily depend on internal discipline and the prospect of federal criminal prosecution to prevent federal officials from feeling wholly immune from state and federal environmental laws. These remedies rely on the diligence of the federal government in self-policing itself and its officers to assure that the federal government does not injury citizens through pollution.  Citizen suits, judicial review actions, and state enforcement actions are directed at the government, but do not provide federal officers with personal exposure to penalties.  Federal officers also enjoy immunity from ordinary state tort actions, with the U.S. being substituted for the individual officer in such cases.  Thus, Bivens actions can be the remedy of last resort where federal officers endanger individual citizens through their misconduct.

The Iqbal decision prevents the use of supervisory liability ala Dotterweich and Park in the Bivens tort context.  Even if the supervisor is standing by and watching the misconduct of subordinates, the supervisor is not liable for the acts of those subordinates.  This is an extremely dangerous incursion on federal supervisors being held responsible for the conduct they condone by their subordinates -- when federal supervisors, knowing that their subordinates are systematically violate the constitutional rights of others, stand silence, they condone and tacitly consent to that conduct.  Iqbal is bad law and bad policy.

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