In a sharply divided ruling today the Supreme Court ruled that former Attorney General John Ashcroft and FBI director Robert Mueller are not liable for the mistreatment of detainees in a New York detention facility after they were rounded up and detained in the post-9/11 hysteria that gripped the nations leaders and fueled public panic, xenophobia and religious bigotry.  Hundreds of Muslim men, most of Arab descent; some citizens and nearly all here legally, were herded into detention centers because they were brown and Islamic.  

The ruling does not, however, immunize Ashcroft et al.  Instead, it deals only with the requirements that had to be made in the initial lawsuit to show that the men who were rounded up, detained and mistreated were selected on the basis of race, religion or ethnic origin in order to outlive a motion to dismiss the case at the outset.  Instead, SCOTUS leaves it to the Second Circuit to decide in the first instance whether to allow plaintiffs the right to amend their lawsuits in hopes of bolstering their claims.  The man whose name identifies the case, Javaid Iqbal, is a Pakistani Muslim who was caught up in a 9/11 ‘sweep’ and held in solitary confinement for 6 months.  He has since been deported back to Pakistan.  He and the other detainees who brought suit claimed they were subjected to torture and religious bias and their lawsuit sought monetary damages in order to hold Ashcroft, Mueller and others accountable for the abuse the detainees claimed they suffered.  

So what does this all mean?  Do they just get a pass?  It looks like, for now, the answer to that seems to be a qualified ‘yes.’

The Court ruled that high officials cannot be held responsible for the actions of individuals down in the ranks, but can only be found liable for their own personal misconduct.

That does not amount to a legal pass, but it does require anyone who would seek damages for being unconstitutionally abused while in custody (military or otherwise) to come forth with specific proof that high-ranking government officials directly and personally committed illegal acts.  This was accomplished without explicitly fashioning a new form of legal immunity to apply in the aftermath of a terrorist attack.

Much attention to the Court’s 5-4 ruling in Ashcroft v. Iqbal (07-1915) will be focused, of course, on whether former Attorney General John D. Ashcroft and current FBI Director Robert Mueller will ultimately be held accountable for the FBI roundup within the U.S. and subsequent abuse of men of Arab descent in the immediate wake of the Sept. 11, 2001, attacks.

But the larger meaning of the decision may well turn out to be the flat rejection of the notion of liability for the misconduct of subordinates – an issue, according to Monday’s dissent, that the Court reached out on its own to address even after both sides conceded there might sometimes be high-level liability for subordinates’ unconstitutional acts.


Throughout the history of the Iqbal case, one question has been overarching – would the courts be tempted to manufacture a ‘fraidy cat’ exception that would give cover to officials of the previous administration for the heinous wrongs they committed because they were frightened, shaking cowards, and to a certain extent, that is precisely what they did, even though the language of Justice Kennedy’s opinion is more general and defines the requirements to keep a case in the federal court system from being dismissed at the beginning when the claim is that officials of the government have acted in an unconstitutional manner.