Court to decide whether top officials can be sued

By Joan Biskupic, USA TODAY

WASHINGTON — The Supreme Court agreed Monday to decide whether top government officials can be sued for the alleged abuse of a Pakistani Muslim arrested and jailed after Sept. 11, 2001.

The case, arising from the federal roundup of Arab Muslims in New York after the terrorist attacks, could be an important test of the personal responsibility of high-ranking officials when subordinates violate constitutional rights.

The court agreed to hear an appeal from former attorney general John Ashcroft and FBI Director Robert Mueller of a ruling that allowed a lawsuit against them to proceed.

Federal agents arrested Javaid Iqbal at his Long Island home in late 2001 and held him from January to July 2002 in a federal detention unit in Brooklyn. Iqbal alleges he was kept in solitary confinement, beaten and subjected to abusive strip searches. He claims he was picked up and categorized "of high interest" to the Sept. 11 investigations solely because of his race, religion and national origin.

After he was released and deported to Pakistan, Iqbal sued numerous federal officials, including Ashcroft and Mueller, claiming they violated his civil rights. He sought damages and attorneys fees. Justice Department lawyers argued that Ashcroft and Mueller were not responsible for the conditions of his confinement or any alleged mistreatment.

The U.S. Court of Appeals for the 2nd Circuit ruled last year that the case against Ashcroft and Mueller could go forward. The New York-based court speculated the officials could have known of the allegedly discriminatory conditions and said Iqbal met the test for lifting officials usual immunity for wrongdoing by subordinates.

The court added that a trial judge could end up ruling for the officials at an early stage if evidence shows they were not sufficiently involved in the alleged abuse to support a finding of liability.

In the Justice Department s appeal accepted Monday, government lawyers said the lower court used too lenient a test for canceling the usual immunity accorded government officials. It said the 2nd Circuit wrongly assumed senior officials would have been aware of any mistreatment and condoned it.

Government lawyers also said the lower court ruling could present problems for officials involved in national security. They argued that officials should be able to undertake their "duties with decisiveness," rather than with fears of later litigation that could force them to answer questions under oath or release sensitive documents.

The 2nd Circuit had rejected the government s notion that the post-Sept. 11 context required a higher test for lawsuits against officials. "We fully recognize the gravity of the situation that confronted investigative officials of the United States as a consequence of the 9/11 attack," Judge Jon Newman wrote. "But most of the rights that (Iqbal) contends were violated do not vary with surrounding circumstances, such as the right not to be subjected to needlessly harsh conditions of confinement. … The strength of our system of constitutional rights derives from the steadfast protection of those rights in both normal and unusual times."

A 2003 report by the Justice Department s inspector general documented a pattern of physical abuse of detainees by guards at the Brooklyn holding facility.

Alexander Reinert, Iqbal s lawyer, had urged the high court to let his lower court victory stand.

The case of Ashcroft v. Iqbal is likely to be heard in late fall, and a decision should come in 2009.

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Tuesday, June 17, 2008 | 14:18 WIB 244