Supreme Court of the United States (WDCpix)

Supreme Court of the United States (WDCpix)

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.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

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.

Iqbal claims that in November 2001, he was arrested at his Long Island home for using fraudulent identification documents. He was designated a person “of high interest,” however, purely because he is a Muslim from Pakistan, he says. Iqbal was held for almost six months in extremely restrictive conditions in a maximum security prison in Brooklyn, N.Y., where he was segregated from the rest of the prison population and confined to a cell for 23 hours a day under a constant, blinding light. He claims that while there, his jailers “kicked him in the stomach, punched him in the face, and dragged him across” his cell without justification; “subjected him to serial strip and body-cavity searches when he posed no safety risk to himself or others,” and “and refused to let him and other Muslims pray because there would be ‘[n]o prayers for terrorists,’” according to the Supreme Court.

Although most of the mistreatment was allegedly committed by low-level guards and other officials at the prison, Iqbal claims that Ashcroft and Mueller were at the very least aware of the discriminatory detention and treatment and condoned it — or devised it — in violation of his First and Fifth Amendment rights.

Still, the court concluded that “the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU [the federal prison] due to their race, religion, or national origin. 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.”

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.”

In a vigorous dissent, Justice David Souter, joined by Justices John Paul Stevens, Stephen Breyer and Ruth Bader Ginsburg, objected to the court’s imposition of these hurdles to government officials’ liability. In their view, the court’s opinion effectively “does away with supervisory liability,” because it implies that even if Ashcroft and Mueller knew that their subordinates were denying prisoners their constitutional rights and condoned it, they would not be legally responsible. The court does this, Souter wrote, even though Ashcroft and Mueller had conceded that “they could be held liable on a theory of knowledge and deliberate indifference. By overriding that concession, the Court denies Iqbal a fair chance to be heard on that question.”

Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrant Rights Project, warned on Monday that “there’s going to be a tendency to over-read the decision as creating an insurmountable barrier to these kinds of lawsuits. I think that’s a mistake. I don’t think the court’s suggesting you need to have detailed knowledge of what high-ranking officials were doing before you can have any discovery. This case turned in large part on the especially sparse allegations in the complaint,” he said, noting that much of the evidence supporting those allegations has since been produced. If they’d been cited in the case when it was filed, he said, “I think the court under its plausibility standard would have found it sufficient.”

Rachel Meeropol, a lawyer at the Center for Constitutional Rights who is representing former prisoners making very similar claims in another case, Turkmen v. Ashcroft, said that because the district court allowed her case to move forward, “we have all of that information that shows high-level official involvement in the practices we’ve complained of.” But when lawyers first bring a case, she said, they’re usually not in that position. In cases involving victims of government abuse, then, the court’s decision “gives [government officials] a sort of practical immunity from suit because only they have the specific information about what actions they may have taken,” she said.

Souter’s dissent, interpreting the majority as eliminating supervisory liability, is “a broad reading of the case,” she said. “I hope it’s not interpreted as being that far-reaching. It’s never been the case that you can hold high-level officials accountable simply because their employees did something wrong, but if they’re deliberately indifferent to the fact that their subordinates are acting unconstitutionally, that may be the basis for liability. That basis is called into question by this decision.”

Although the Supreme Court remanded the case to the court of appeals, which could allow Iqbal to replead his case, the precedent set by the court’s decision will not be so easily undone.