New legal fight over U.S. antiterror tactics

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

By , Staff writer of The Christian Science Monitor

Four days after handing the Bush administration a major setback in its approach to the war on terror, the US Supreme Court has set the stage for another showdown over controversial antiterror policies.

On Monday, the nation's highest court agreed to decide how much evidence is needed to sustain a lawsuit seeking to hold former Attorney General John Ashcroft and current FBI Director Robert Mueller personally responsible for harsh antiterror policies that allegedly led to abuses of Muslim detainees in US prisons.

The issue is important because it could open the way to thousands of lawsuits by Muslims who were rounded up and subjected to harsh conditions of confinement during the investigation following the 9/11 attacks on the Pentagon and World Trade Center. More significantly, it could open the door to private lawsuits against other cabinet-level members of the Bush administration allegedly involved in developing controversial antiterror policies.

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The issue arises in a suit filed by a Pakistani Muslim held for seven months in solitary confinement in a Brooklyn prison after being wrongly suspected of involvement in terrorism after 9/11. Javaid Iqbal was deported to Pakistan after the FBI determined he was not a terrorist.

Mr. Iqbal filed suit in federal court in Brooklyn against a range of US officials who he says were responsible for his alleged abusive treatment. His suit seeks compensatory and punitive damages not only against the prison officials who he says personally beat and abused him but also against their supervisors – including then-Attorney General Ashcroft and FBI Director Mueller.

Government lawyers asked that the suit be thrown out. But a federal judge and the Second Circuit Court of Appeals in New York have allowed the case to move forward.

Three different appeals were filed on behalf of various government supervisors asking the Supreme Court to take up the case and dismiss the lawsuit.

One was filed on behalf of Ashcroft and Mueller. The Bush administration asked that the other two appeals be held without action, pending the outcome of the Ashcroft/Mueller case. The two other appeals were filed on behalf of Dennis Hasty, a former warden of the Brooklyn prison, and three senior supervisors with the federal Bureau of Prisons.

In addition, the justices also considered taking up a similar appeal involving a class action lawsuit against supervisors at a maximum security psychiatric hospital in California filed by violent sex offenders being held there. That appeal, like the two other Iqbal appeals, are presumably being held by the court pending its decision in the Ashcroft/Mueller case. The court does not routinely announce whether it is holding cases.

Case to be heard next term

Oral argument in the Ashcroft/Mueller case is expected to be heard during the court's 2008-09 term, which begins in October. The other three cases are Hasty v. Iqbal, Sawyer v. Iqbal, and Hunter v. Hydrick.

At issue in all four appeals is how much evidence must be produced to defeat claims of qualified immunity by supervisors who say they had no personal involvement in or knowledge of alleged abusive treatment of prisoners.

Government lawyers had asked the high court to take up the case, but it is unclear which four justices voted to hear the appeal. Was it the majority that rejected the Bush administration's Guantánamo Bay review policies or the four dissenting justices who would have upheld the government's position?

On Thursday, the high court ruled that terror suspects at the Guantánamo Bay, Cuba, prison camp have the right to challenge their detention in a US federal court. Government lawyers had sought to sharply limit any detainee access to the federal courts. Government lawyers adopted a similar strategy in the Ashcroft/Mueller case, seeking to have the case dismissed as quickly as possible.

Lawyers for Ashcroft, Mueller, and other government supervisors say their clients should be shielded from such lawsuits by qualified immunity available to government officials.

Iqbal had no ties to terrorists. He was a Pakistani Muslim who had overstayed his visa. But in the aftermath of the 9/11 attacks, Iqbal was swept up in a massive government effort to identify and disrupt suspected terror cells in the US.

He was held in a special wing of the Metropolitan Detention Center in Brooklyn reserved for persons "of high interest" to the FBI. He was held there until he could be "cleared" of involvement in terrorism by the FBI.

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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