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Court Weighs Post-9/11 Liability
Justice, FBI Chiefs Named in Suit Alleging Anti-Arab Bias

By Robert Barnes
Washington Post Staff Writer
Thursday, December 11, 2008

A government lawyer told the Supreme Court yesterday that former attorney general John D. Ashcroft and FBI Director Robert S. Mueller III should not be subjected to lawsuits filed by Arab Muslims who were detained in this country after the 2001 terrorist attacks and say they were singled out for harsh treatment because of their religion and ethnicity.

Solicitor General Gregory G. Garre told the justices that Ashcroft and Mueller are protected from such suits when they are carrying out their duties, and that their actions constituted a "perfectly lawful law enforcement response to the 9/11 attacks."

The oral arguments in the case produced a spirited debate, as justices pondered the reach of civil lawsuits targeting public officials who allegedly abuse civil rights, the ability of the nation's leaders to go about their work without harassment and whether the balance is altered, in the words of Justice Antonin Scalia, "after an attack on this country of the magnitude of 9/11."

Ashcroft and Mueller were named in the lawsuit by Javaid Iqbal, a Pakistani television cable installer who was arrested at his Long Island home in the months after the attack. He was held in solitary confinement in a section of a Brooklyn prison known as Admax-Shu, for "administrative maximum special housing unit," where he said he was subjected to numerous beatings and strip searches.

He was convicted of document fraud and deported to Pakistan but cleared of any involvement in terrorism. An Egyptian Muslim who was also part of the suit, Ehad Elmaghraby, settled with the government for $300,000. Similar suits are pending.

Iqbal's case names prison guards, FBI agents, the warden of the prison -- which was the subject of a critical report from the Justice Department inspector general -- up to Ashcroft, who was attorney general at the time of the attack. Iqbal says policies formulated by Ashcroft and Mueller singled him out as a suspect of "high interest" solely because of his nationality and religion.

The U.S. Court of Appeals for the 2nd Circuit in New York acknowledged that top government officials carry immunity but decided it was at least "plausible" that Ashcroft and Mueller were responsible for, or knew about, the discriminatory actions Iqbal alleges. It said the suit could go forward with evidence-gathering from the lower-level officials in the case, and then a judge could decide whether there was reason to keep the two top officials in the suit.

Iqbal's attorney, Alexander A. Reinert, said the case presents a basic question of "who is responsible" for the alleged mistreatment of his client.

But Garre said, "The higher up the chain of command you go, the less plausible it is that the high-level official like the attorney general is going to be aware of and know about the sort of microscopic decisions here: mistreatment in the federal detention facility in Brooklyn, alleged discriminatory applications made by FBI agents in the field."

Justices seemed conflicted. Chief Justice John G. Roberts Jr. told Garre that "a policy in which they picked up people and they held them until they were cleared, i.e., sort of demonstrated to be innocent in some way,'' would seem to raise due-process concerns.

But he also pressed Reinert repeatedly about whether the "context" of the cases should be taken into account when formulating rules about whether a plaintiff has assembled charges credible enough for a suit to go forward.

"What you have to show is some facts, or at least what you have to allege are some facts, showing that they knew of a policy that was discriminatory based on ethnicity and country of origin," Roberts said.

Garre relied in part on a decision from the court last year that made it harder for those suing for antitrust violations to pursue their cases without more detailed allegations of wrongdoing. Plaintiffs argue that such detail is available only after they have received the right to question the targets of the suits.

But the author of that opinion, Justice David H. Souter, was one of the justices most skeptical about whether those standards applied to an allegation that "the attorney general of the United States and the director of the FBI were in fact directly involved in devising a policy" that discriminated on the basis of race and religion.

Although the issue at hand was whether the circuit court had correctly decided that the case could go forward, much of the argument concerned whether the tough policies enacted after the Sept. 11, 2001, attacks were justified.

Reinert echoed the circuit court in saying that federal officials are never allowed to devise a scheme that would allow suspects to be swept up solely on the basis of their national origin and religion.

Scalia challenged Reinert's description, saying if that were the case, "the net surely was not cast wide enough, if anybody of that race, religion was swept in. I mean, if it's solely for that reason, there would have been hundreds of thousands of others."

Other justices pointed out that the detention applied to those who had violated immigration or criminal statutes.

The case is Ashcroft v. Iqbal.

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