Friday, December 12, 2008

Now They Figure It Out



WASHINGTON — A case brought by a Muslim man accusing John Ashcroft, the former attorney general, and Robert S. Mueller III, the director of the Federal Bureau of Investigation, of complicity in post-9/11 abuses reached the Supreme Court for arguments on Wednesday on the most preliminary of questions: How specific must a plaintiff’s accusations of misconduct be before he is allowed to pursue a lawsuit? That is in a sense a garden-variety question of civil procedure. But the case of Javaid Iqbal, a Muslim man from Pakistan who used to be a cable television installer on Long Island, seemed freighted with something much larger, and many of the justices’ questions concerned whether the context in which the case arose, in the charged atmosphere in the fall of 2001, should alter or underscore ordinary legal principles.

Mr. Iqbal was among thousands of Muslim men rounded up after the Sept. 11 attacks. Some of them were considered to be “of high interest,” and they were held in a special housing unit of the Metropolitan Detention Center in Brooklyn. While there, Mr. Iqbal said, he was subjected to daily body-cavity searches, beatings and extreme temperatures. He said he was kept in solitary confinement with the lights in his cell constantly on, that he was called a terrorist and a “Muslim killer,” and that he lost 40 pounds during six months in the special unit.

His lawsuit contends that he was singled out for mistreatment based on his religion and national background. Mr. Ashcroft and Mr. Mueller, his lawsuit says, implemented the policies that led to the abuse and condoned it. The two officials say that they are immune from suit, a contention rejected by the federal appeals court in Manhattan last year, at least at the most preliminary stage of the case. In the Supreme Court, the officials argued that Mr. Iqbal’s assertions that they were responsible for any abuses he suffered were speculative and lacked supporting factual allegations.

There was general agreement among the justices that the bar for starting a lawsuit, however low, must at least include plausibility. But the justices seemed divided over whether it was conceivable that the defendants here created or condoned a policy rooted in unlawful discrimination.

Justice David H. Souter said he considered plausible the claim “that the attorney general or the director of the F.B.I. was establishing a policy centered on people with the same characteristics as the hijackers.” Justice Ruth Bader Ginsburg suggested that a 2003 report from the Justice Department’s inspector general may “lend some plausibility” to Mr. Iqbal’s claims. The report found serious abuses by the facility’s personnel. Mr. Garre urged the justices to ignore the report, saying it was outside the scope of the litigation. But he said the report had made findings helpful to his clients’ contention that their own actions, at least, were lawful.

Justice Stephen G. Breyer asked a hypothetical question: would a plaintiff be allowed to pursue a lawsuit against the president of Coca-Cola on the bare accusation that the president had personally put mice in soda bottles? Other justices engaged the question, considering whether such a lawsuit would be subject to sanctions on the grounds that it was frivolous and whether the company’s president would have to submit to questioning under oath at a deposition. “How are we supposed to judge whether we think it’s more unlikely that the president of Coca-Cola would take certain actions,” Chief Justice John G. Roberts Jr. asked Mr. Iqbal’s lawyer, Alexander A. Reinert, “as opposed to the attorney general of the United States?”

Justice John Paul Stevens suggested that he was uneasy about lightly letting claims against high officials proceed, mentioning his majority opinion in Clinton v. Jones, the 1997 decision that allowed Paula Jones’s sexual harassment case against President Bill Clinton to go forward. A prediction in that decision about the burden the suit would place on the president — “it appears to us highly unlikely to occupy any substantial amount of petitioner’s time” — turned out to be incorrect.

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