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New legal fight over U.S. antiterror tactics

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

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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.

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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."