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Guess I'm missing something, Phil, but what's the connection you see between the Iqbal grant and the prosecution-planning conference?
Ashcroft v. Iqbal concerns the resort by an individual plaintiff to federal court to seek civil damages against high-ranking federal officials. In so doing, he followed a decades-old path: In Bivens v. Six Unknown Federal Narcotics Agents (1971) the court, by a 6-3 margin, had established such actions as a corollary to 42 U.S.C. § 1983, that portion of the Civil Rights Act of 1871 authorizing suits against state officials alleged to have committed deprivations of civil rights. In contrast, the conference appears to be an effort by private persons to develop a criminal case against high-ranking U.S. officials.
The first case ought to be routine. Deborah's post thus is spot-on in assuming an unfriendly grant of review. The loser below was a high-ranking U.S. official, challenged on account of his actions post-9/11, by means of a litigation vehicle, the Bivens action, that has drawn conservative ire since its inception.
The second instance is quite different. It is true that, in many countries adhering to a continental legal tradition, private persons may act as parties civiles who develop a criminal case and present it to public prosecutors for further investigation, prosecution, and punishment. The procedure's been invoked a number of times—to date unsuccessfully—in efforts to use courts in Germany and elsewhere as forums for criminal actions against U.S. officials like former Defense Secretary Donald Rumsfeld for post-9/11 policies. But there exists no such mechanism in the United States by which the "planning conference" might bear fruit. In any event, there's an apples-and-oranges difference between civil-damages suits and criminal prosecutions ending in imprisonment.
So what's the link?
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The court just granted cert in a case in which plaintiff—a detainee who had been held here in the United States in pretrial detention shortly after the 9/11 attacks—is seeking damages against former Attorney General John Ashcroft and FBI Director Robert Mueller (among others) based on claims that his treatment in detention violated his constitutional rights. The government's petition for review in Ashcroft v. Iqbal is here.
Guess Justice Kennedy wasn't kidding when he suggested in Boumediene a few days ago that the court might have to get more engaged in deciding "war on terror"-related cases.
Mr. Iqbal alleged that he was beaten and denied medical care, deprived of food (losing 40 pounds during his detention), subjected to extreme hot and cold temperatures, left in solitary confinement, often shackled, repeatedly subjected to strip and body-cavity searches, and subjected to racial ethnic and religious discrimination of various kinds. The 2nd Circuit rejected the defendants' motion to dismiss the case, and the Justice Department sought review.
On its face, the grant of cert doesn't look good for Mr. Iqbal (who has since been deported to his native Pakistan). It takes only four to grant cert, and I'm going out on a limb in guessing that Scalia, Thomas, Alito, and Roberts aren't huge fans of the Bivens doctrine (affording individuals a right to sue government officials who violate the Constitution). Then there's the conventional wisdom that the court doesn't grant cert to affirm. The 2nd Circuit allowed the case to go forward to permit limited discovery in the case, including the possible deposition of Mssrs. Ashcroft and Mueller on post-9/11 decisions about detainee treatment. If the court had no problem with that outcome, it could easily have waited until the case reached the merits before weighing in. But a lot of the justices have expressed concern about the burden of such discovery on government officials.
Apart from wondering where Justice Kennedy sits on these issues, it seems like a key question is whether the court will stick with its own precedent and recognize that it has to address the substantive validity of Mr. Iqbal's constitutional claims—were his Fifth Amendment rights violated?—before determining whether those rights were "clearly established" enough for a reasonable officer to have known better. (If the law wasn't clear enough for officials to have known better, the officials can invoke "qualified immunity" and stop the suit in its tracks.) Whatever the court decides about the qualified immunity defense, a holding by the Supreme Court on the merits that the Constitution bars this kind of treatment of detainees would be huge (and welcome) news.
And under it all there'll be the great question of whether Justice Scalia should recuse himself from consideration. He did, after all, just recently announce to the international press that he didn't particularly think torture amounted to punishment prohibited by the Eighth Amendment and that the constitutionality of detainee abuse depended on the circumstances (like, say, the days just after 9/11?). Here's betting there's a motion for recusal—and that Scalia stays in.