Which is More Plausible? Racial and Religious Discrimination In the Course of Post-9/11 Detention… or the Existence of “Little Green Men?”

Last fall, we previewed the oral argument for Ashcroft v. Iqbal, a Supreme Court case asking whether two cabinet-level officials in the Bush Administration could be held liable for alleged constitutional violations arising out of post-9/11 detention policies. On Monday, the Supreme Court handed down its opinion, ruling 5-4 that former detainee Javaid Iqbal had failed to show sufficient evidence to claim that the two officials — former Attorney General John Ashcroft and current FBI Director Robert Mueller — are liable for policies that allegedly resulted in the violation of Iqbal’s constitutional rights. The Court did not, however, preclude a lower court from allowing Iqbal to gather more evidence to show that Ashcroft and Mueller are personally responsible for policies that Iqbal claims violated his constitutional rights.

Iqbal, a Pakistani national, was arrested, detained, and allegedly mistreated in New York City in 2001 amid the post 9/11 terrorism investigation. Iqbal claims that he was presumptively classified as “of high interest” to the 9/11 investigation solely because of his race, religion, and national origin, and accordingly placed in maximum security detention. He further claims that, while in detention, he was subjected to solitary confinement, unnecessary and abusive strip searches, and beaten by correction officers. He was never charged with terrorist activity, but pleaded guilty to ID fraud, served 16 months, and was deported to Pakistan. Iqbal subsequently sued not just the FBI agents and prison officials with whom he had direct contact, but also Ashcroft and Mueller, who oversaw the agencies that were responsible for his detention, alleging that these officials were responsible for an unlawful policy that directed that detainees like Iqbal would be confined in maximum security solely because of their race, religion, or national origin.

As we predicted in our preview, the Court’s opinion largely avoided the meatier constitutional issues of the case – whether Ashcroft and Mueller’s alleged actions could rise to the level of a constitutional violation – and focused instead on whether Iqbal made sufficiently specific allegations in his initial complaint to continue pressing his constitutional claims against those officials.

The Court ruled that Iqbal had not provided sufficient evidence to claim that Ashcroft and Mueller were themselves responsible for violating his constitutional rights, and that, as his complaint was currently written, his claims of discrimination could be brought only against the lower-ranking federal officials with whom he had direct contact. The Court based this ruling first, on its very limited view of supervisory liability for constitutional violations (despite Ashcroft and Mueller’s concession that they could be liable as supervisors, which meant that the parties never briefed the question); and second, on the plausibility standard laid out in Bell Atlantic v. Twombly (2007), in which the Supreme Court ruled that the Federal Rules of Civil Procedure require a complaint to allege facts sufficient to cross “the line between possibility and plausibility” in order for it to be addressed in a court.

As SCOTUSBlog reports, the majority’s first step—its rejection of a high-level official’s liability for misconduct of subordinates—is not quite a free pass for Mueller and Ashcroft, but is nonetheless a significant narrowing of liability. In addition, the Court’s opinion, written by Justice Anthony Kennedy, also appears to tip the Court’s hand as to the majority’s view of the merits of Iqbal’s constitutional claims, albeit veiled as a “plausibility” determination:
The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim – Osama bin Laden – and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslins, even though the purpose of the policy was to target neither Arabs nor Muslims…. As between that “obvious alternative explanation” for the arrests,…and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion.
Soon-to-retire Justice David Souter, joined by Justices Ginsburg, Breyer, and Stevens, dissented from the opinion and would have none of it. Not only does Justice Souter’s dissent call out the majority for ruling on the scope of supervisory liability—explaining that “the majority answers a question with no briefing at all” and states that “[t]he attendant risk of error is palpable”—it also takes the majority to task for shifting the pleading-stage inquiry from consideration of the plausible to considering whether allegations are “probably true”:
Twombly does not require a court at the motion-to-dismiss stage to consider whether the factual allegations are probably true. We made it clear, on the contrary, that a court must take the allegations as true, no matter how skeptical the court may be…. The sole exception to this rule lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel. That is not what we have here….By my lights, there is no principled basis for the majority’s disregard of the allegations linking Ashcroft and Mueller to their subordinates’ discrimination.
As the case has been remanded to the Second Circuit to consider whether Iqbal should be allowed to amend his complaint to present more detailed allegations against Mueller and Ashcroft, we do not yet know what specific implications it will have on whether other high-ranking Bush officials can be personally sued based on their role in post-9/11 investigations and detentions. However, for now, the Court’s decision to adopt a high pleading standard for Iqbal’s claims of discrimination against Ashcroft and Mueller, as well as its seemingly dismissive attitude toward the factual accuracy of those claims, suggests that these two top officials will not be held accountable for the detention and treatment of Javaid Iqbal any time soon.