Supreme Court Report

9/11 Fallout: The Next Round

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Javaid Iqbal, a Pakistani native living on Long Island, was one of hundreds of immigrants arrested in the wake of the Sept. 11, 2001, attacks. Charged with document fraud, he was taken to the Metro­politan Detention Center in Brooklyn, where, he says, he was mistreated.

According to Iqbal, he was subjected to beatings and forced into solitary confinement for nearly six months of his incarceration. Iqbal has since filed a federal lawsuit against prison employees and high-level government officials, including FBI Director Robert Mueller and former Attorney General John Ashcroft.

Iqbal claims he was discriminated against because of his race and religion, and says Ashcroft and Mueller are ultimately responsible. But the government says Iqbal’s lawsuit should not proceed based upon “bare and conclusory allegations” that Ashcroft and Mueller knew about and condoned any mistreatment of detainees.

On Dec. 10, the U.S. Supreme Court will hear arguments in Ashcroft v. Iqbal over whether the case should be dismissed. Although the court this term lacks a terrorism case freighted with such issues as Guantanamo Bay and habeas corpus—as was last term’s Boumediene v. Bush—the legal community is closely following this case for two major reasons.

First, federal practice experts say the Supreme Court will likely clarify recent confusion over the degree of specificity needed in fed­eral pleadings.

“9/11 is the factual backdrop, but this case is about a technical but important issue in federal practice: What are the standards for fed­eral pleadings?” says Allan Ides, a constitutional law professor at Loyola Law School in Los Angeles. “The outcome could answer the question of how wide is the federal court door open.”

Meanwhile, civil rights and immigration advocates, along with current and former government lawyers, are watching to see what the high court says about qualified immunity for government officials acting in the aftermath of terrorist attacks.

“The question the court will answer is how easy it will be to move up the chain of command and sue Cabinet officials,” says former Solicitor General Paul Clement, who filed the Supreme Court petition before he left to join the Georgetown University Law Center as a visiting professor. “The Justice Department argues there should be a high hurdle before you get to take the attorney gen­eral’s deposition. Otherwise, there is a real potential for Cabinet officers to be deluged with discovery requests.”


The history of the case begins with four airplanes and a clear September morning. At the time, Iqbal was employed as a cable television installer, but he soon became ensnared in the country’s response to the terrorist attacks.

Within hours of the attacks on the World Trade Center and the Pentagon, the FBI had launched an unprecedented investigation to track down the participants and thwart further terrorist acts. In the first two months of the probe, the FBI questioned more than 1,000 people suspected of having terrorist links.

While many were released, more than 700 were held on immigration charges. Of those, 184 individuals deemed to be “of high interest” were housed by the Bureau of Prisons under special circumstances designed to prevent them from communicating with any co-conspirators still at large.

Federal officials arrested Iqbal in New York City on Nov. 2, 2001, and found him to be of high interest to the FBI. At the time, he lived in Hicksville, N.Y., with his wife, a U.S. citizen, and had an application pending for a green card. He was charged with document fraud for using a Social Security card that belonged to someone else.

According to Iqbal, prison staffers brutally beat him twice and subjected him to daily strip and body cavity searches. He says he was kept in solitary confinement under harsh circumstances, includ­ing extreme heat and cold, and 24-hour light exposure. Iqbal also claims that prison officials often confiscated his Koran and forbade his participating in Friday group prayers.

Iqbal ultimately pleaded guilty to fraud charges. He was sentenced to a 16-month prison term and later sent back to Pakistan. Thereafter, he sued a host of government officials for detaining and mistreating suspects based upon discriminatory criteria. A co-plaintiff settled his claims for $300,000 and is no longer in the case.

“It was a snap rush to judgment in the aftermath of Sept. 11,” says Alexander Reinert, Iqbal’s lawyer and an assistant professor at the Benjamin N. Cardozo School of Law in New York City. “The Supreme Court has consistently held that it is unlawful for anyone in govern- ment to categorize people by race and treat them differ­ently for that reason.”

Ashcroft and Mueller, Iqbal claims in his court filings, “knew of, condoned, and willfully and maliciously agreed to these conditions of confinement as a matter of policy, solely on account of … religion, race and/or national origin, and for no legitimate penological interest.”

But the Justice Department moved to dismiss the case against Ashcroft and Mueller based upon qualified immunity. U.S. District Judge John Gleeson said the case should be allowed to continue, and last year the 2nd U.S. Circuit Court of Appeals at New York City affirmed.

Writing for the majority, Judge Jon Newman found that the allegations, although not yet proven, were certainly plausible and sufficient to survive a motion to dismiss.

In Supreme Court filings, the Justice Department argues that the mere assertion that Ashcroft and Mueller were in charge of the entire FBI investigation at that time is not a sufficient basis to hold them personally liable without additional facts.

“Given the unprecedented size of the investigation, there is every reason to assume that the attorney gen­eral and the director of the FBI did not personally do more than … approve a general policy of using highly restrictive confinement for any ‘high interest’ detainee until it could be established that he was not connect­ed with terrorist activities,” wrote Solicitor General Greg­ory G. Garre.


The Supreme Court’s ruling in Iqbal’s case could affect a number of other suits filed over the post-Sept. 11 response. Turkmen v. Ashcroft, a class action on behalf of Muslim, South Asian and Arab noncitizens, is await­ing a ruling from the 2nd Circuit.

Dan Kesselbrenner, director of the National Immigration Project of the National Lawyers Guild, says that he is “very troubled by the government’s actions.”

“We believe there is a need for transparency and accountability,” says Kesselbrenner. “There needs to be a remedy for people when they are mistreated.”

The appeals court decision was an “extra­ordinary break from estab­lished law,” says Richard Samp, chief counsel for the Washington Legal Foundation.

“To allow these lawsuits would provide political activists with a recipe for how to interfere with normal government functions,” says Samp, who filed an amicus brief on behalf of a group of former attorneys general. “At the end of the day, the only real surprise will be what grounds the court uses for reversing.”

Some legal experts say the Supreme Court decided to hear Iqbal’s case because it wants to clarify a ruling from last year on the standard for specificity of pleadings to withstand a motion to dismiss. In Bell Atlantic Corp. v. Twombly, an antitrust case, the high court ruled that a complaint needed to have factual allegations to support a claim of conspiracy.

Since the Twombly ruling, federal courts and legal scholars have been wrangling over whether the high court established a heightened pleading standard for federal courts.

Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, says “the government is asking the court for a decision that would effectively require civil rights plaintiffs to have a smoking gun to bring a lawsuit. Obviously you need a good-faith basis for bringing the lawsuit, but you can’t be expected to know all of the information in advance of the lawsuit.”

But, says D.C. attorney Michael Martinez, “when you’re a government official you often have to make quick decisions that are of major import.”

“We do not want government officials making decisions with one eye toward possibly getting sued,” says Martinez, counsel for Dennis Hasty, former warden of the Metropolitan Detention Center, who has also filed a cert petition with the Supreme Court. “We want them to make decisions that are the best for all of us.”

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