Abuse and Accountability

Tuesday, May 19, 2009

JAVAID IQBAL was one of the hundreds of Muslim or Arab men rounded up in the United States after Sept. 11, 2001, and held captive in a detention center in Brooklyn. Mr. Iqbal asserted that he was beaten, subjected to daily strip and cavity searches, deprived of adequate food, and forced to endure solitary confinement under extreme temperatures. The Pakistani native later sued dozens of U.S. officials, including then-Attorney General John D. Ashcroft and FBI Director Robert S. Mueller III, whom Mr. Iqbal claimed "each knew of, condoned, and willfully and maliciously agreed to subject" Mr. Iqbal to harsh conditions "as a matter of policy, solely on account of" his "religion, race, or national origin" and "for no legitimate penological interest."

In dismissing the claims against Mr. Ashcroft and Mr. Mueller yesterday, the Supreme Court concluded that Mr. Iqbal had not presented enough evidence to support his allegations. "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," a 5 to 4 majority ruled.

Government officials are usually -- and sensibly -- shielded from being sued personally for actions they take in their official capacities. Officials must be free to carry out their duties without the fear of being held personally liable for millions of dollars in damages and without the lost time and energy that inevitably accompanies lawsuits. That immunity, however, can be pierced if there is sufficient evidence that directly links officials to unconstitutional acts. This is the kind of evidence the majority concluded that Mr. Iqbal lacked against Mr. Ashcroft and Mr. Mueller.

The justices sent the case back to the New York-based U.S. Court of Appeals for the 2nd Circuit, which now must decide whether to allow Mr. Iqbal to try to present more evidence to substantiate his claims. Mr. Iqbal's claims against lower-level officials, including guards and supervisors at the detention center, are unaffected by the court's ruling.

Government officials must be held accountable, and there are several ways in which this can be accomplished, including by public hearings, elections, prosecutions and private lawsuits. The court has rightly set a high -- but not insurmountable -- bar when private litigation serves as the vehicle: Plaintiffs should name as defendants only those for which there is credible evidence of direct involvement in constitutional breaches. They can add defendants to the litigation when they amass information that directly and credibly implicates others.

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