Who's at fault for harsh antiterror tactics?

Iqbal's lawyers say that Ashcroft was a "principal architect" of the harsh detention policy and that Mueller was instrumental in adopting and carrying out the policy.

"The policy of holding post-September 11th detainees in highly restrictive conditions of confinement until they were 'cleared' by the FBI was approved by defendants Ashcroft and Mueller," Iqbal's lawsuit says.

Ashcroft and others "knew of, condoned, and willfully and maliciously agreed to subject [Iqbal and others] to these conditions of confinement as a matter of policy, solely on account of their religion, race, and/or national origin and for no legitimate penological interest," the suit says.

A federal judge refused to throw out the suit against Ashcroft and Mueller. On appeal, a panel of the Second US Circuit Court of Appeals in New York also refused to remove them from the case.

"It is plausible to believe that senior officials of the Department of Justice would be aware of policies concerning the detention of those arrested by federal officers in the New York City area in the aftermath of 9/11 and would know about, condone, or otherwise have personal involvement in the implementation of those policies," the appeals court panel said.

Solicitor General Gregory Garre is asking the Supreme Court to reverse that decision. He argues that Iqbal's lawyers have not presented enough specific evidence linking Ashcroft and Mueller to Iqbal's plight.

The case involves highly generalized and speculative allegations against Ashcroft and Mueller that are insufficient to overcome the officials' qualified immunity, Mr. Garre says in his brief to the court. "A complaint must allege sufficient facts to cross the line between possibility and plausibility," he writes.

Iqbal's lawyer, Alexander Reinert of New York, says the Justice Department is seeking to put plaintiffs' lawyers in a no-win situation, a Catch-22. In the Iqbal case, the government possesses almost all the evidence about the origin and development of the Brooklyn detention policy, he says, yet government lawyers argue that unless Iqbal can cite that evidence in his initial complaint, the suit against Ashcroft and Mueller must be dismissed regardless of what that evidence might reveal about Ashcroft's and Mueller's involvement or lack of involvement.

Mr. Reinert says the Iqbal lawsuit contains specific enough evidence to give government officials fair notice and to demonstrate the plausibility of Iqbal's case.

"This case is really about access to court and access to justice," Reinert says. "It is about the ability of plaintiffs who have suffered from government misconduct to get into court."

The case is Ashcroft v. Iqbal (07-1015). A decision is expected by June.

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