Supreme Court Preview: Should Cabinet-Level Officials Be Held Liable for Constitutional Violations Arising Out of Post-9/11 Detention Policies?

The Supreme Court will hear argument tomorrow in Ashcroft v. Iqbal, a qualified immunity case raising the question of whether high-ranking officials can be personally subjected to suit for allegedly unconstitutional detention policies based on race, religion, or national origin, arising out of the investigation into the September 11, 2001 terrorist attacks.

Javaid Iqbal is a Pakistani citizen who was arrested in November 2001 by federal officials in New York City during the post-9/11 federal investigation. Suspects who were detained pursuant to this investigation and deemed to be “of high interest” to the terrorism investigation were housed in the Administrative Maximum Special Housing Unit of the Metropolitan Detention Center in Brooklyn, New York. Iqbal was held for more than 150 days in this maximum security unit after being classified as “of high interest.” He claims that he was presumptively classified as “of high interest” to the 9/11 investigation solely because of his race, religion, and national origin. While in maximum security detention, Iqbal claims he was subjected to solitary confinement, unnecessary and abusive strip searches, and beaten by correction officers. He was never charged with terrorist activity, but plead guilty to ID fraud, served 16 months, and was deported to Pakistan.

While the substance of Iqbal’s claims would warrant close interest on their own, the defendants against whom these allegations are pressed raise the stakes: Iqbal sued not just the FBI agents and prison officials with whom he had direct contact, but also then-Attorney General John Ashcroft and FBI Director Robert Mueller. Filing his action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in which the Supreme Court held that federal officials may be held personally liable for violations of the Constitution, Iqbal alleged that the federal defendants violated his First, Fourth, Fifth, Sixth and Eighth Amendment rights. As part of these claims, Iqbal alleged that former Attorney General John Ashcroft and current Director of the FBI Robert Mueller were responsible for a policy that directed that detainees like Iqbal would be confined in maximum security solely because of membership in a particular race, religion, or national origin.

In October 2004, prior to any discovery, several defendants, including Ashcroft and Mueller, moved to dismiss Iqbal’s complaint arguing, among other things, that they were protected from suit by the doctrine of qualified immunity. Under this doctrine , government officials are immune from suit for rights violations unless a claimant can show that the official violated a clearly established constitutional right of which a reasonable person would be aware; when this doctrine is applied to a supervisory official, the claimant must generally show that the high-ranking official was directly involved in the violation. The policy rationale for qualified immunity—that officials would be distracted from the work of government if they had to constantly respond to public litigation—arguably applies even more strongly to high-ranking officials, who are highly visible and carry wide-ranging public responsibilities. Moreover, the higher up the chain of command an official is, the less likely he or she will be involved in every in-the-field decision that allegedly leads to a rights violation.

The lower courts, however, said that the context of the 9/11 attacks made it more likely that high-ranking officials like the Attorney General and the FBI Director would be personally involved in setting the detention policy challenged here. The lower courts further ruled that allegations that Iqbal was confined in significantly harsher conditions solely because of his race and religion were sufficient to state a violation of clearly established law.

All of these facts might lead the reader to expect the argument tomorrow to focus on hot-button issues like racial profiling or the tactics used by the government in the aftermath of 9/11. In fact, the argument may focus on something less controversial but still with potentially great impact on our justice system: pleading standards.

Ashcroft and Mueller don’t really challenge Iqbal’s claims that the post-9/11 detention policy actually violated his constitutional rights—rather, they challenge the standard under which the sufficiency of Iqbal’s allegations that they were directly involved in the violation should be judged. In 2007, the Supreme Court held in Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007), that the Federal Rules of Civil Procedure require a complaint to allege facts sufficient to cross “the line between possibility and plausibility.” Ashcroft and Mueller claim that Iqbal’s complaint has not crossed that line because he does not allege with specificity that they were personally involved in the claimed constitutional violations. The U.S. Court of Appeals for the Second Circuit – disagreed, holding that Iqbal raised a plausible claim “because of the likelihood that these senior officials would have concerned themselves with the formulation and implementation of policies dealing with the confinement of those arrested on federal charges in the New York City area and designated ‘of high interest’ in the aftermath of 9/11.”

What the Supreme Court will likely be concerned with at argument is what exactly Bell Atlantic v. Twombly meant when it “clarified” the plausibility standard for civil pleadings. While pleading standards may not be incredibly exciting as issues of law, they are extraordinarily important: every plaintiff seeking to hold a defendant accountable for some alleged wrong must face the question of whether his or her complaint has sufficiently stated a valid claim. If the Court uses Iqbal’s case to heighten the pleading standard, even if only in cases against high-ranking officials, it could close the courthouse doors to a substantial number of plaintiffs. In cases like Iqbal’s, a heightened pleading standard could prevent plaintiffs alleging significant government abuses of power and violations of fundamental constitutional rights from having their day in court.

But Iqbal’s lawsuit is far from the only case that would be affected by interpreting Bell Atlantic v. Twombly to establish a heightened pleading standard. Since Bell Atlantic was decided on May 21, 2007, it has been cited more than 6,500 times by the lower courts. Any clarification of the meaning or application of that precedent is likely to have immediate and widespread impact on courts and litigants across the country.