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Supreme Court Says Sept. 11 Detainee Cannot Sue Ashcroft, Mueller

The court ruled that former attorney general John D. Ashcroft, left, and FBI Director Robert S. Mueller III were not liable for the discriminatory treatment alleged by a Pakistani man who was arrested shortly after the 2001 attacks.
The court ruled that former attorney general John D. Ashcroft, left, and FBI Director Robert S. Mueller III were not liable for the discriminatory treatment alleged by a Pakistani man who was arrested shortly after the 2001 attacks. (By Gary Tramontina -- Associated Prss)

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By Robert Barnes
Washington Post Staff Writer
Tuesday, May 19, 2009

The Supreme Court ruled yesterday that former attorney general John D. Ashcroft and FBI Director Robert S. Mueller III may not be sued by a Pakistani man who was seized in the United States after the 2001 terrorist attacks and who alleged harsh treatment because of his religion and ethnicity.

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The court ruled 5 to 4 that the top officials were not liable for the allegedly discriminatory actions of their subordinates unless they had ordered the measures. The decision affects similar lawsuits filed by Arab Muslims picked up after the attacks, and the court split along familiar ideological lines. Justice Anthony M. Kennedy sided with the conservatives and wrote the opinion.

In a separate decision, the court ruled that women who worked before 1979 for companies whose maternity leave policies meant lower pension payments cannot sue under current laws that make such policies illegal. In a case involving AT&T, the court ruled 7 to 2 that such policies were "bona fide" at the time and that women may not challenge them retroactively.

The suit against Ashcroft and Mueller was brought by Javaid Iqbal, a New York cable installer who was arrested shortly after the Sept. 11, 2001, attacks.

Iqbal was held in solitary confinement in a section of a Brooklyn prison known as Admax-Shu, for "administrative maximum special housing unit," which the Justice Department's inspector general singled out for its harsh treatment of prisoners. Iqbal said that he was subjected to numerous beatings and daily body-cavity searches and that he lost 40 pounds during his time in jail.

He was eventually convicted of document fraud and deported to Pakistan, but was cleared of any involvement in terrorism.

Iqbal's case names prison guards, FBI agents, the prison warden and others, including Ashcroft, who was attorney general at the time. 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 decided it was at least "plausible" that Ashcroft and Mueller were responsible for, or knew about, the discriminatory actions Iqbal alleges, which would not be covered by the immunity that government officials normally receive for official actions.

The appellate court said the suit could proceed with gathering evidence from the lower-level officials cited in the case and then a judge could decide whether there was reason to keep the two top officials in the suit.

But Kennedy said that the decision was wrong, and that Iqbal had no plausible claims that Ashcroft and Mueller knew of or put in place a discriminatory policy.

Iqbal's assertions "amount to nothing more than a formulaic recitation of the elements of a constitutional discrimination claim," Kennedy wrote. He said it was logical that the largest law enforcement investigation in the nation's history focused on Arab Muslims because of the identities of the Sept. 11 attackers.

"It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims," he wrote.


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