Ashcroft v. Iqbal; qualified immunity and heightened pleading standards

This is a big case. It is a very big case. It has to do with whether top officials in the US "War on Terror" in the year following the 2001 attacks have to "show up" in court and be subject to discovery and potential liability for a policy that allegedly led to religious discrimination in rounding up suspects and to beatings and other cruel punishment of them in confinement, in violation of the US Constitution. The attorneys for former Attorney General Ashcroft that the case should be dismissed for two reasons: (1) that the allegations made by Iqbal (see below) were "conclusory" in nature and really didn't have any factual basis to them; and (2) that Ashcroft, Robert Mueller (FBI head) and others had "qualified immunity" from prosecution as long as they acted lawfully within the scope of their responsibilities. However, the Second Circuit Court of Appeals (NY) decided that the lawsuit should proceed against these officials. Before any confidential material had been turned over, however, these high officials petitioned the Supreme Court for review. It was granted, and so the case will be heard by the Court in a few days. It promises to be the big news for the Holiday season...even bigger than the price of handbags at Bergdorf Goodman.

Some Factual Background

Before 9/11 Javaid Iqbal was known to his Long Island customers as "the cable guy." He was arrested the next month on charges of credit card fraud. A few months later, federal officials came calling. They took hm to the Metropolitan Detention Center in Brooklyn, NY, where he was held as a person of "high interest" to the FBI for 150 days. During these days, Iqbal alleges he was segregated with other Muslim prisoners, and that he was subject to the following indignities: brutal beatings on two occasions, daily strip and body-cavity searches; lights on 24 hours a day in his cell; heat in the summer and air conditioning in the winter; frequent confiscation of his Koran and denial of his participation in Friday prayers.

He was deported to Pakistan later in 2002. In mid-2004 he filed suit in the Southern District of NY, alleging consitutional and civil rights violations. The technical name of the claims is a Bivens claim (named after a 1971 Supreme Court case), where alleged unconstitutional behavior from otherwise protected federal agents triggers a right to sue those people for violating his/her constitutional rights. As mentioned above, government lawyers tried to fend off Iqbal's challenge on two grounds: that he hadn't specifically-enough alleged participation of these high federal officials in schemes that led to his alleged mistreatment in custody and that the officials were blanketed with the protection of qualified immunity when acting lawfully in their official capacities.

What REALLY is at Stake, In My Judgment

In most instances, in my judgment, this kind of defense would have worked. Petitioner's claims would have been thrown out and his only claim, if he had any, would have been against the people who actually subjected him to this kind of treatment. But we are living in different times these days. I think that this case, in some ways, demonstrates the growing judicial frustration, pure and simple, with the Bush Administration. Of course, there are important legal issues here, among them the required specificity of pleadings in federal court under Rule 8 of the FRCP in light of the Supreme Court's 2007 Twombly decision (127 S Ct 1955). That is, there is a legitimate legal issue of whether this 2007 decision imposes what you might call a "heightened" pleading standard under Rule 8 than previously contemplated. This would be a significant issue because, under the rather liberal pleading standards of "notice" pleading, all a plaintiff needs do is to show that a court has juridiction, and then allege "a short and plain statement of the claim showing that the pleader is entitled to relief."

So, the point is that there are real and substantial legal issues here. But we are foolish to think that law happens in a vacuum. It happens, along with everything else, in the maelstrom of events that shake our culture each day. One of those events has been the gradual repulsion of the legal profession (if that isn't too strong a word) at the way that rights were trampled in the wake of the 9/11 attacks. To be clear: there are many people, including me, who would argue that the unprecedented nature of that attack led to the initial reaction that we should give the government rather wide berth in dealing with the problem, especially because we simply didn't know fully how to respond and what the nature of the danger was. When you are hit in a fight, you often respond in a quick and disproportionately violent manner. But when it became clear to many, and me included, that the Bush Administration was using 9/11 as a cloak or excuse to put plans into effect that not only limited rights of people, not simply those overseas or "foreigners" in our soil, but also tried to discredit American citizens who might, for a number of reasons, disagree with the Bush Administration on a number of issues, then people gradually became repulsed by the Administration's tactics. People felt that government itself was starting to partake of deep corruption and violence which it said it was trying to defend us against.

I think this state of affairs, more than any particular "legal" issue, forms the backdrop for this case. In any other time the case would have been thrown out long ago. The fact that it has a life of such vibrancy--to make it to the Supreme Court--means that the issues underlying it have touched a nerve with many people. Iqbal is probably the "poster child" of a government gone too far...

Conclusion

Having said all of this, I think the Supreme Court will reverse the Second Circuit. It is rather dangerous business to begin allowing civil lawsuits against high government officials to proceed to discovery unless evidence of serious government misconduct is probable. While I believe that some of this is probable in this case, I think the majority of Justices will consider the times (early 2002), the scope of what the plaintiff wants and order the case dismissed. Just getting to the Supreme Court is a signal victory for Iqbal and those who believe that this Administration's sad history is a tale of squandering the good will of the American people almost completely in a little over seven years since the 9/11 attacks.

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