New legal fight over U.S. antiterror tactics

The Supreme Court agrees to examine if high-level officials can be sued for harsh policies.

from the June 17, 2008 edition

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According to the lawsuit, Iqbal was kept in a solitary confinement cell 23 hours a day. He was subjected to physical and verbal abuse, including repeated, unnecessary strip and body-cavity searches, the suit says.

The suit says the treatment stemmed from a policy established by then Attorney General Ashcroft and implemented by Mueller and the FBI.

Iqbal's lawyers say the FBI dragnet was a conspiracy to subject Muslim men in the US to harsh conditions of confinement "as a matter of policy, solely on account of their religion, race, and/or national origin." The men were confined in the toughest wing of the prison without receiving an individualized assessment or due process, the lawsuit says.

"Keeping [Iqbal] in isolation for nearly 24 hours per day, without access to fresh air and light, adequate bedding, adequate heat, and without adequate recreation or exercise, bore no relationship to legitimate security concerns," the suit says.

Iqbal's lawyers write that it amounted to "unjustified punishment" and the "willful, malicious, and unnecessary infliction of pain and suffering."

In urging the Supreme Court to take up the case, lawyers for Ashcroft and Mueller said the Iqbal case threatens to expand the law to make it easier to hold supervisors responsible for acts in which they played no personal role. "The mere fact of supervisory authority is not an adequate basis for holding [Ashcroft and Mueller] personally liable for alleged wrongdoing committed by others," wrote Solicitor General Paul Clement in his brief to the court.

In a reply brief, Iqbal's lawyer, Alexander Reinert, said that Ashcroft and Mueller were "personally responsible for the discriminatory policy of classifying Arab and Muslim detainees as 'high interest' solely because of their race, religion, and national origin."

Mr. Reinert wrote that Ashcroft was the "principal architect" of the policies, and that Mueller "was instrumental in the adoption, promulgation, and implementation" of the policies.

Reinert said that since filing Iqbal's complaint, lawyers have discovered new evidence establishing Ashcroft and Mueller's "more direct involvement in discriminatory treatment."

He said the FBI agent who ran the detention and terror investigation operation in Brooklyn "intends to rely on a memorandum issued by petitioner Ashcroft to show that he was acting consistent with petitioner Ashcroft's direction." The lawyer adds that the FBI agent who ran the operation reported directly to Mueller.

Iqbal's suit originally included a second Muslim plaintiff, Ehab el-Maghraby. Mr. Maghraby, an Egyptian, was paid $300,000 by the US government in February 2006 to settle his case. His allegations were similar to Iqbal's except in two instances. Maghraby said while being escorted in the prison he was pushed from behind by a guard and fell against a hard surface, breaking his teeth. He also said a guard inserted a flashlight in his rectum during a strip search, causing him to bleed.

Iqbal's suit says he was led in shackles into a room where 15 prison officials took turns beating and taunting him. "The officers screamed at him, saying he was a 'terrorist' and a 'Muslim,' " the suit says. "Several of these officers picked him up and threw him against the wall, kicked him in the stomach, punched him in the face, and dragged him across the room."

On March 20, 2002, the suit says, a group of prison officials subjected Iqbal to three strip and body-cavity searches one after the other, while he was still in the same room. When Iqbal protested a request that he undergo a fourth strip search, he was punched in the face and punched and kicked in the back and legs, according to the complaint.

Court declines parents' rights case

In other action, the Supreme Court declined on Monday to take up a case examining whether procedures used in Illinois to investigate allegations of child abuse violate the fundamental rights of parents.

The court denied the petition without comment. At issue was whether agents with the Illinois Department of Children and Family Services could warn parents that their children might be placed in state custody if they did not agree to a state-imposed "safety plan." Such safety plans often require a suspected parent to live apart from the family for the duration of the investigation.

The denial at the Supreme Court leaves in place a federal appeals-court decision upholding the Illinois procedures.

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