- The Washington Times - Tuesday, May 19, 2009

The Supreme Court rejected Monday an effort by a Pakistani man detained after the Sept. 11, 2001, terrorist attacks to sue former high-ranking Bush administration officials for abuse by U.S. prison guards.

In a 5-4 split decision, the justices decided against Javaid Iqbal, a Pakistani who wanted to sue former Attorney General John Ashcroft and FBI Director Robert S. Mueller III, and said the officials cannot be held responsible for the actions of their subordinates.

Iqbal was arrested after the terrorist attack on unrelated identification-fraud charges. In response to a Sept. 11-related order on criminal aliens, he was held at the Metropolitan Detention Center in Brooklyn, N.Y., until he pleaded guilty and served a 16-month sentence in a U.S. prison before he was deported.

While in U.S. custody, he claims, guards kicked him in the stomach, punched him in the face and dragged him across his cell, subjected him to several strip and body-cavity searches, and refused to let him pray.

Iqbal claims the government officials adopted an unconstitutional policy that subjected him to harsh conditions of confinement on account of his race, religion and national origin.

These high-interest detainees were held under restrictive conditions to prevent them from communicating with the general prison population or outside world.

Justice Anthony M. Kennedy, writing for the majority, said Iqbal’s claims were “insufficient.”

“The complaint does not show or even intimate, that petitioners purposefully housed detainees in the [Brooklyn facility] due to their race, religion or national origin,” Justice Kennedy said. “All it plausibly suggests is that the nation’s top law enforcement officers, in the aftermath of a devastating attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.”

Justice David H. Souter, who is retiring from the court, wrote the dissenting opinion, saying, “There is no principled basis for the majority’s disregard of the allegations linking Ashcroft and Mueller to their subordinates’ discrimination.”

Jeffrey Addicott, director of the center for terrorism law at St. Mary’s University law school in San Antonio, said the court’s decision averted a potential major route for lawsuits against U.S. officials and also will affect how cases involving other detainees will proceed.

“There were a lot of allegations that occurred in that detention facility in the wake of 9/11, but the larger picture is that we will see a lot of civil suits, people alleging that they are held illegally,” Mr. Addicott said. “This could have opened the floodgates if this went the other way.”

He added that “although this case dealt with illegal detention issues in the U.S. criminal system, it represents a looming series of future lawsuits, which will be brought by detainees in Gitmo and other detention facilities against the U.S. for unlawful imprisonment and ill-treatment.”

In those cases, he said, “the U.S. response will have to rely on the protections of the law of war to blunt these issues.”

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