May, 2009:

via Supreme Court Dismisses Detainee Lawsuit

Justice Kennedy

WASHINGTON — A sharply divided Supreme Court ruled Monday that FBI Director Robert Mueller and former Attorney General John Ashcroft can’t face a lawsuit from a former Sept. 11 detainee who argued they were responsible for his restrictive confinement because of his religious beliefs.

The court on Monday overturned a lower court decision that let Javaid Iqbal’s (Ick-ball) lawsuit against the high-ranking officials proceed.

Remember the acronym “RATS”. It helps to remember the core Republican right-wing ideological bench-legislators: Roberts, Alito, Thomas, and Scalia with Kennedy as the crucial fifth swing vote.

These guys do not rule for the plaintiff against the government no matter if Ashcroft himself had tied the poor guy to a chair. It’s all about “supervisory responsibility”. How liable is a person of authority over subordinates no matter if the supervisor is aware of the crimes or not?

Of course the administration’s policy is what led to Iqbal’s illegal detainment. The court would never let the suit go forward. They can’t let more cats out of that bag, especially considering the torture scandal. Heavens no.

Kennedy, this time swinging with the right-wing activist justices, claims there wasn’t sufficient facts presented to allow the suit to be heard. According to Kennedy just because the defendants, Ashcroft and Mueller, devised a policy to round up persons of Middle Eastern origin and Muslim religion at random, mistreat them, and then hold them indefinitely without habeas corpus is not enough reason to sue them. From The Washington Independent:

In a sharply divided 5-4 opinion, Justice Anthony Kennedy, writing for the majority and joined by the conservative wing of the court, wrote that Javaid Iqbal had not set out sufficient specific facts to present a plausible case. Iqbal had claimed that after the Sept. 11, 2001 terrorist attacks the Justice Department and FBI, led by Attorney General Ashcroft and FBI director Mueller, instituted a policy that resulted in the arrests and mistreatment of thousands of men based solely on their race, religion or national origin.

…Still, the court concluded that “the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU [the federal prison] due to their . All it plausibly suggests is that the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.”

If they weren’t picked up and  held for ethnic reasons – race, religion, or national origin – then why? What was the reasons for incarceration? More from The Washington Independent:

Since filing his legal complaint, Iqbal’s lawyers say they’ve obtained much more evidence that Ashcroft and Mueller were actively involved in developing the policy that led to the discriminatory detention of Muslim immigrants, partly because they were allowed to proceed with the case against the lower level federal defendants. In addition, three reports from the Office of Inspector General issued in 2003 confirm many of the charges that after Sept. 11, pursuant to federal policies, Muslim immigrants were rounded up and detained for prolonged periods without justification in harsh conditions, denied access to lawyers, and physically and verbally abused. But Iqbal and his lawyers didn’t know the exact role of high-level Justice Department and FBI officials when they filed the case.

They go on to say that there are very few cases of this nature where lawyers know all the facts of the case at the time of the filing. The SCOTUS turned this one away because of the scant wording and thin evidence at the beginning of the suit. I feel that this was an escape, a way for justices looking for a way to stop this to hook onto. Kennedy wrote that Iqbal “had not set out sufficient specific facts to present a plausible case” knowing that the plausibility needed usually comes as the laswsuit progresses, which is in fact what happened in this case.

In a vigorous dissent, Justice David Souter, joined by Justices John Paul Stevens, Stephen Breyer and Ruth Bader Ginsburg, objected to the court’s imposition of these hurdles to government officials’ liability. In their view, the court’s opinion effectively “does away with supervisory liability,” because it implies that even if Ashcroft and Mueller knew that their subordinates were denying prisoners their constitutional rights and condoned it, they would not be legally responsible. The court does this, Souter wrote, even though Ashcroft and Mueller had conceded that “they could be held liable on a theory of knowledge and deliberate indifference. By overriding that concession, the Court denies Iqbal a fair chance to be heard on that question.”

This decision sets the stage for suits against other top officials in the Bush administration, including Bush, but there are some with the opinion that it could be too broadly read – that the decision would stop all “supervisory responsibility” suits by saying that supervisors are no longer responsible for the actions of subordinates.

Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrant Rights Project, warned on Monday that “there’s going to be a tendency to over-read the decision as creating an insurmountable barrier to these kinds of lawsuits. I think that’s a mistake.

Mr. Gelernt goes on to state that if the Iqbal case had had more on the coversheet, then the case would have gone foreward becasue it would have been more plausible. My question is, where’s the bar? What or how much evidence is required initially before the plausibility threshold is met? Or is this a situation where the rules are made up as they go? In my opinion, the “pausibility” standard with “sufficient specific facts” stated by Justice Kennedy is a catch-all wastebasket for lawsuits involving high ranking officials in the Bush administration and yet another effort by right-wing activist judges to make the illegal legal and to twist “supervisory responsibility” around to the point it is unrecognizalbe accept by themselves.