Convictions: Slate's blog on legal issues

Apples and Oranges

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?

High Crimes?

Today comes a bizarre follow-up to Deb's post regarding the Supreme Court's decision to grant cert in a case involving legal accountability for high officials. Over at the Volokh Conspiracy, Orin Kerr points to news that a group of legal academics is planning to convene a conference to plan the prosecution, trial, and punishment for senior Bush administration officials. The effort is reportedly being led by Lawrence Velvel, dean of the Massachusetts School of Law at Andover:

"This is not intended to be a mere discussion of violations of law that have occurred," said convener Lawrence Velvel, dean and cofounder of the school. "It is, rather, intended to be a planning  conference at which plans will be laid and necessary organizational structures set up, to pursue the guilty as long as necessary and, if need be, to the ends of the Earth."

"We must try to hold Bush administration leaders accountable in courts of justice," Velvel said. "And we must insist on appropriate punishments, including, if guilt is found, the hangings visited upon top German and Japanese war-criminals in the 1940s."

... "For Bush, Richard Cheney, Donald Rumsfeld, and John Yoo to spend years in jail or go to the gallows for their crimes would be a powerful lesson to future American leaders," Velvel said.

Somehow, I don't think this is what the Supreme Court had in mind when they granted cert ...