Law Professor, University of N.C. School of Law
Monday, May 18, 2009 3:30 PM
The Supreme Court ruled today that former attorney general John Ashcroft and FBI Director Robert Mueller may not be sued by Arab Muslims who were seized in this country after the 2001 terrorist attacks and allege harsh treatment because of their religion and ethnicity.
Eric Muller, professor of jurisprudence and ethics at the University of North Carolina School of Law, was online Monday, May 18, at 3:30 p.m. ET to discuss the ruling and its significance in the holding of detainees.
Eric Muller: Hi everyone. Eric Muller here -- I'm a law professor at the University of North Carolina School of Law. I'll be happy to try to answer your questions about today's Supreme Court decision in Ashcroft v. Iqbal.
Fairfax, Va.: Does the decision mean that higher ups are not responsible for treatment of detainees? And if they aren't, then who is?
Eric Muller: This decision was about the legal standard for what a plaintiff needs to allege or charge in a complaint -- the document that initiates a lawsuit -- in order for that complaint to move forward in the system towards trial.
The decision doesn't mean that higher-ups are never legally responsible. It means that a plaintiff needs to be much more specific in saying exactly how the higher-ups were *specifically* involved in the alleged mistreatment.
Washington, D.C.: From what I've read Igbal alleges he was singled out, that true?
Eric Muller: Since this is just a complaint, and there has been no trial, we can't really know the truth of the specific allegations he makes.
What he alleges in the complaint is that he was singled out for physical and other kinds of abuse while in detention in the US awaiting trial on charges -- and that two of the reasons he was singled out for this abuse were his ethnicity and his religion.
(It is worth noting, though, that the Inspector General of the Justice Department investigated allegations of brutality and other mistreatment of Muslim aliens at the Metropolitan Correctional Center after 9/11 and concluded that such abuse did in fact occur.)
Annapolis, Md.: Who do you think will wind up paying for reported harsh treatment of detainees? Will it be former administration members or does today's ruling negate that? A lot of people are saying that the Bush administration is to blame and that they should pay somehow. Please discuss.
Eric Muller: Today's ruling does not negate the possibility that high officials will have to pay for the alleged mistreatment of post-9/11 alien detainees in the US. The ruling does, however, make it much harder for a plaintiff to file a complaint that will stick against the high officials, unless the plaintiff somehow has gotten his/her hands on evidence that shows that the high officials were *specifically* involved in the planning and approval of the abuse.
Needless to say, it's going to be mighty tough for plaintiffs to get their hands on any such evidence anytime in the near future. If the law requires this sort of complaint to be dismissed because its allegations are not specific enough, then naturally the plaintiff cannot pursue the lawsuit and get discovery of evidence in the defendants' hands.
Today's ruling does not foreclose the possibility that lower-ranking officials could be held liable for unconstitutional actions they undertook.
Fairfax County, Va.: If one could show that Mueller and Ashcroft specifically sought to round up American citizens only because of their religion (Muslim) and for no other reason, but did not specifically encourage or turn a blind eye to mistreatment of these people, would they still get off scot-free?
Why is this not equivalent to the Japanese-American internment camps, or are those still considered to have been constitutional?
Eric Muller: The allegations in this complaint focus on abuse. In other words, the complaint does *not* seek to hold Mueller and Ashcroft liable for the arrests and the detentions themselves.
So today's ruling doesn't tell us anything specifically about whether Mueller (no relation to me, by the way!) and Ashcroft (or any other government official, for that matter) can be held liable for *rounding up*, as distinguished from abusing, post-9/11 detainees.
However, it is certainly the case that there is language in Justice Kennedy's opinion -- language that pushes beyond what was necessary to decide the case, in my view -- that puts the best possible face on the "reasonableness" of the decision to single out people by race and ancestry after 9/11. That language, though technically what we lawyer types call "dictum" (meaning that it's not technically necessary to the specific outcome of the decision), will still weigh heavily against future efforts at accountability.
You ask about whether this is equivalent to the incarceration facilities in which Japanese Americans were held during World War II. Here you create in me an almost uncontrollable itch, since that is the specific area of my own research and writing. (Here's an example: http://www.amazon.com/American-Inquisition-Japanese-Disloyalty-World/dp/0807831735) But I will try to control it and not write about Japanese Americans for the next half hour!
Suffice it to say that while there are major differences between the conditions in which Japanese Americans were held from '42 to '45 and the abuse that Iqbal and others allege they endured at the Metropolitan Correctional Center, there is a common core to the two scenarios -- the identification and detention of an internal "enemy," in whole or in part, on the basis of race. And the "dictum" I mentioned earlier in this reply, putting the best possible face on the government's conduct, certainly is a sad reminiscence of the Supreme Court's eagerness in 1944 to put the best possible face on the evacuation orders against Japanese Americans.
washingtonpost.com: Book: "American Inquisition: The Hunt for Japanese American Disloyalty in World War II" by Eric L. Muller (Hardcover -- University of North Carolina Press)
Boston, Mass.: Given the current document trail, why couldn't the detainees who were subjected to waterboarding sue the OLC for sanctioning torture? Does the Supreme Court have legal authority to rule on disputes about OLC opinions?
Eric Muller: Detainees certainly can sue OLC attorneys. Indeed, one has: Jose Padilla sued John Yoo. See http://abajournal.com/news/padilla_sues_counterterrorism_policy_architect/
washingtonpost.com: Padilla Sues Counterterrorism Policy Architect John Yoo (ABA Journal, Jan. 4, 2008)
Chicago, Ill.: Eric,
What is your impression of Justice Souter's dissent? It seems to me that the minority make a valid point: Ashcroft and Mueller had conceded that superiors could (in some circumstances) be responsible for the abusive actions of their agents, particularly if Iqbal could have proven they directed such abuse, or had knowledge of the abuse and allowed it to continue wantonly (and it's hard to see how Iqbal can allege this if he's never give discovery -- doesn't that put victims in a position between Rule 11 and Twombley)....but the majority ignored this and decided, seemingly, that government superiors can NEVER be liable for the tortuous actions of their inferiors under qualified immunity. Did the majority completely overreach?
Eric Muller: Souter argues that the majority has taken the significant step of eliminating the concept of "supervisory" liability in an action against federal agents for allegedly unconstitutional conduct.
It appears to me that Souter has the better of the argument here -- and it is especially noteworthy that the majority opinion lets Souter's accusation stand without responding to it or correcting it.
Houston, Tex.: Assume, for the sake of argument, that there's a Gitmo detainee who is completely innocent. Maybe a wrong place, wrong time type of situation. What recourse does he have? He can't get out. Is NO ONE liable for the mistake that landed him in jail? Why is it no one's responsibility?
Eric Muller: It is important to note that today's decision says *nothing* about GITMO detainees. The plaintiffs in this lawsuit were Muslims in the USA who were rounded up and detained shortly after 9/11/01. They are alleging abuse (though not torture) in the Metropolitan Correctional Center in New York -- not at GITMO or at some military base overseas.
As for the GITMO detainees, there is in fact a military tribunal system in place designed to determine who may properly be held as an unlawful enemy combatant and who may not. In a real sense, that system only came about because the Supreme Court forced the government to do it, and the system has been much criticized on procedural grounds.
Alexandria, Va.: It seems to me that the most dangerous part of the opinion is the language on supervisory liability. It used to be that knowledge of constitutional violations being committed plus inaction by the supervisor was sufficient to get the supervisor on the hook. No more? Will this have broad repercussions in run-of-the-mill Section 1983 cases in the policing and prison context?
Eric Muller: You're quite right that the forcefulness of the majority opinion's assertion that "supervisory liability" in civil rights actions is a "misnomer" and that all responsibility must be for the supervisor's own acts appears to make new ground.
On the other hand, given that there is so much law in the lower federal courts on this very question, it's hard for me to believe that the majority would be wiping that all away with one stroke, and without the benefit of briefing on the question. My best guess is that this broad reading of this piece of the decision will not end up holding a majority of the Court if the question is specifically called in a future case.
Napa, Calif.: Kennedy 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.
Kennedy's comments, slightly reworded, could just as easily read:
Kennedy said it was logical that the largest law enforcement investigation in the nation's history focused on blacks, Latinos and Asians because of the identities of the vast majority of criminal gang affiliates.
"It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to gang related criminal activity would produce a disparate, incidental impact on blacks, Latinos and Asians, even though the purpose of the policy was to target neither blacks, Latinos or Asians," he wrote.
Which sounds an awful lot like the SC just OK'ed racial profiling, no?
Eric Muller: This is a great and very important question.
This piece of Kennedy's opinion is addressing a specific legal question: whether, under the controlling legal standards for how persuasive an initial allegation has to be in order to survive, the allegations that these defendants were motivated by race and religion in singling out Iqbal in this case crossed the line from merely "conceivable" to "plausible."
Kennedy volunteers that there's an obvious plausible explanation -- that the officials focused on these individuals not *because* they were Muslims but because they were likelier to have links to the 9/11 attacks.
And so Kennedy concludes that the strong likeliness that *that* was the explanation for the policy leaves the plaintiffs' allegations of willful discrimination on the wrong side of the "conceivable"/"plausible" line. So he tosses out the allegations as insufficient to support a lawsuit.
This is not a blanket endorsement of racial profiling. But the speed with which Kennedy is willing to credit this explanation as "plausible" (and the racial motivation as implausible) certainly will give some help to supporters of racial profiling, both in terrorism investigations and elsewhere.
Eric Muller: OK, I'm all through. This has been fun. I appreciated the questions and the opportunity to respond. Goodbye!
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