Ashcroft, Former ATT'Y Gen. v. Iqbal

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Author: Lyle Denniston

Contents

[edit] Briefs and Documents

Docket: 07-1015 and 07-1150

Issue: Whether current and former federal officials, including FBI Director Robert Mueller and former Attorney General John Ashcroft, are entitled to qualified immunity against allegations they knew of or condoned racial and religious discrimination against individuals detained in the wake of the September 11 attacks.

Merit briefs

Amicus briefs

Oral Argument: Transcript

Decision: Reversed and remanded in an opinion by Justice Kennedy

[edit] Pre-Argument Articles

[edit] Argument Preview

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. The Court, while it 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.

[edit] Oral Argument Recap

With Chief Justice John G. Roberts, Jr., discussing what might be a For-9/11-Only rule to limit lawsuits against high government officials during crisis times, the Supreme Court on Wednesday seemed to be edging toward embracing a new form of legal immunity. A majority of Justices seemed concerned about requiring officials of Cabinet or near-Cabinet level to answer in court for the way they react in the immediate, perhaps-frenzied aftermath of a severe threat to national security. The case of Ashcroft v. Iqbal (07-1015) provided the platform for voicing those worries.

The government appeal in the case seeks to spare former Attorney General John D. Ashcroft and present FBI Director Robert S. Mueller from any potential obligation to give evidence in a group of lawsuits in federal courts claiming that they were at least partly to blame for serious physical and mental abuse of Arab Muslims picked up and detained in harsh conditions in a Brooklyn, N.Y., jail in the weeks and months after the terrorist attacks on the U.S. on Sept. 11, 2001.

While U.S. Solicitor General Gregory G. Garre insisted that Ashcroft and Mueller were not asking for any special burdens on lawyers trying to make a case against high-level officials, Garre did explicitly argue that “context does matter” in considering limits on such lawsuits– specifically, the context of efforts of top officials who had acted to “protect the effective functioning of our government” following a terrorist attack.

That argument got the most enthusiastic embrace from the Chief Justice, who repeatedly attempted to get a lawyer for a post-9/11 detainee to concede that there should be a more rigorous standard for making claims of wrongdoing against the Attorney General and the FBI director “in the wake of 9/11.” The duty to plead such a case in the formal claims that launch the lawsuit, Roberts went on, perhaps should be more demanding because context does matter.

When the counsel for detainee Javaid Iqdal, Alexander A. Reinert of Yonkers, N.Y., argued that the level of pleading required should be no higher when top government officials were being sued than when, say, a corporate president was the target, the Chief Justice seemed genuinely put off.

That comparison had arisen because the Court, in one of the hypotheticals pursued throughout the hearing, explored the differences or similarities in the standard of pleading between the post-9/11 lawsuits against Ashcroft and Mueller and a fictitious lawsuit in which the president of the Coca-Cola company was being sued on a claim that he was to blame for dead mice being found in the bottles of Coke produced at his plants.

Justice Stephen G. Breyer was the originator of that hypothetical, as he sought answers from both Garre and Reinert about when judges in federal court could shut down the attempts to get evidence directly from high-ranking officials for something that may have been done by subordinates. When Reinert and some of the Justices suggested that there were existing protections against abuse of the evidence-gathering process in a lawsuit, Garre — supported energetically by the Chief Justice — ridiculed those as inadequate. What is necessary, Garre said, was to have the case against the officials dismissed outright, rather than leave it to trial judges to protect them from harassing evidence demands that would divert them from their government duties.

Breyer, while giving no sign that he agreed with Garre that shutting down the 9/11 lawsuit altogether was the right outcome, appeared genuinely troubled about high officials having to face perhaps ten years of evidence demands, if there were no way for them to escape that. Justice John Paul Stevens seemed to share some of the same concern.

If the Chief Justice were seeking to build a majority to set some higher hurdles for lawsuits such as this one, he very likely would be able to count on Justice Antonin Scalia. Although not as active as some of the other Justices, Scalia left little doubt that he was attracted to Garre’s argument that Ashcroft and Mueller were not personally responsible for any abuse of detainees, but had devised only a completely legal policy of temporary detention. Scilalia also suggested that the ability of high-level officials to do their jobs undiverted by lawsuits should not have to depend upon how a single federal judge felt about the suit’s continuation.

Justice Samuel A. Alito, Jr., was deeply skeptical of the factual basis for the claims against Ashcroft and Mueller.

Justice Anthony M. Kennedy said little, but did comment that he shared some of Breyer’s concern about the need to cut off evidence demands in cases that might not have a lot of substance, at least at the outset.

Only Justices Ruth Bader Ginsburg and David H. Souter made comments suggesting that they thought the claims made in Iqbal’s lawsuit against high officials probably passed the threshhold of pleading requirements, and that there may well be some substance to those claims.

Justice Clarence Thomas, following his usual practice, asked no questions and made no comments.

The Court is expected to decide the case sometime in late spring.

[edit] Opinion Analysis

Without mentioning the current controversy over holding high officials of the Bush Administration legally to blame for torture allegedly carried out against detainees held overseas by the U.S. military or Central Intelligence Agency, the Supreme Court on Monday signaled that it may be very difficult to hold them accountable in some future lawsuit by a detainee claiming such abuse. The Court ruled that high officials cannot be held responsible for the actions of individuals down in the ranks, but can only be found liable for their own personal misconduct.

That does not amount to a legal pass, but it does require anyone who would seek damages for being unconstitutionally abused while in custody (military or otherwise) to come forth with specific proof that high-ranking government officials directly and personally committed illegal acts. This was accomplished without explicitly fashioning a new form of legal immunity to apply in the aftermath of a terrorist attack.

Much attention to the Court’s 5-4 ruling in Ashcroft v. Iqbal (07-1915) will be focused, of course, on whether former Attorney General John D. Ashcroft and current FBI Director Robert Mueller will ultimately be held accountable for the FBI roundup within the U.S. and subsequent abuse of men of Arab descent in the immediate wake of the Sept. 11, 2001, attacks.

But the larger meaning of the decision may well turn out to be the flat rejection of the notion of liability for the misconduct of subordinates — an issue, according to Monday’s dissent, that the Court reached out on its own to address even after both sides conceded there might sometimes be high-level liability for subordinates’ unconstitutional acts.

Why it may be somewhat puzzling that the Court would take on an issue beyond what the case seemed to require, there may be a clue within the majority opinion written by Justice Anthony M. Kennedy. The opinion embraces the concerns expressed by a lower court judge over government officials being challenged for their response to “a national and international security emergency unprecedented in the histwory of the American Republic.”

One of the questions over-hanging the Ashcroft case throughout its journey to and through the Supreme Court was whether the Justices would be tempted — by the post-9/11 atmospherics — to create some special crisis-based legal shield for official actions. They may now have done just that, even though most of the language of the Kennedy opinion is more general, defining what is required to keep a case in federal court from being dismissed at the beginning when the claim is that government officials have acted unconstitutionally.

The Iqbal case, as it reached the Supreme Court, was a civil rights damages lawsuit aimed directly at Ashcroft and FBI chief Mueller by Javald Iqbal, a cable TV installer who lived in Hicksville on New York’s Long Island until rounded up in the wake of 9/11 (he is a Muslim Pakistani) along with more than 1,000 others, mostly men of Arabic descent.

With Monday’s ruling finding by the Court majority that his lawsuit was too thin on facts, his case returns to the Second Circuit Court, which had previously allowed it to proceed. It will be up to that Court, in the first instance, to decide whether to give Iqbal a chance to come up with more facts to support his claim against Ashcroft and Mueller. But, if the Circuit Court does allow that, he will have to marshal facts that charge Ashcroft and Mueller with direct participation in unconstitutional actions against him personally. However much he claims to have been tortured or abused or to have had his Muslim faith defiled while in custody after the FBI “sweep,” he could not win on the point unless he can put the two high officials in the very midst of that mistreatment. A claim of mere knowledge that it was going on, apparently, would not be enough. Neither, it appears would a claim that they were deliberately indifferent to what was going on. Monday’s decision already has found such assertions to be insufficient.

As the Court majority read Iqbal’s lawsuit, in the form in which it was filed, they concluded that “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.”

Within that perception of what Iqbal was claiming, the majority found it unremarkable that, since the 9/11 terrorists were Arab Muslims associated with the Al Qaeda terrorist network, it would occur that a roundup after that attack would focus on Arab Muslims. That harsher impact on men of one faith and ethnic identity, Justice Kennedy wrote, can be explained by reasons other than religious or ethnic bias.

Because the Iqbal case involved an FBI “sweep” carried out within the U.S. against individuals living here legally, it says nothing directly about what an alien detainee claiming torture or abuse at some U.S. detention site overseas — including Guantanamo — would have to say in a lawsuit against high officials to keep the case from being dismissed. It seems doubtful, though, that the Court would relax the evidence-pleading standard it has adopted for a domestic case for use in an overseas-based case.

It no doubt will fall first to the lower courts to spell out when, if ever, a high official has such a deep involvement in torture or abuse will face legally accountability for the actions.

[edit] Links and further information

National Journal: Plaintiff lawyers see broad impact of high court's decisions on detainees

ACSblog: Examining Congress’ Reaction to High Court’s Reach

[edit] From the Blogosphere

[edit] SCOTUSblog


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