Who's at fault for harsh antiterror tactics?

The US Supreme Court this week takes up a case examining whether cabinet-level officials in the Bush White House can be held legally accountable for the administration's controversial tactics in the war on terror.

At issue is an attempt to force former Attorney General John Ashcroft and FBI director Robert Mueller to stand trial with federal agents, prison guards, and their supervisors. They are all named in a lawsuit filed by a Pakistani man who was held as a terror suspect for five months in solitary confinement in a US prison although there was no evidence connecting him to terrorism.

The case is set for oral argument on Wednesday.

Javaid Iqbal was among hundreds of Middle Eastern and South Asian Muslims who were swept up in a massive government dragnet in the New York City area in the weeks and months after the Sept. 11 attacks. Most of the men were arrested on valid immigration-related charges. But instead of being housed in an immigration detention center to await deportation, some of the men – including Mr. Iqbal – were taken to a maximum security section of a federal prison in Brooklyn.

Iqbal's lawsuit alleges that he was subjected to "brutal mistreatment and discrimination" by federal officials who arbitrarily classified him as a Sept. 11 suspect "of high interest" to the FBI solely because he was a Muslim from Pakistan.

Many of Iqbal's claims are consistent with the findings of an April 2003 report by the Department of Justice's Inspector General. The report criticized officials for establishing a system that punished detainees and treated them as guilty until proven innocent. The report said many Muslim men were held under harsh conditions on baseless leads that the FBI took months to investigate and disprove.

The suit alleges systematic mistreatment, including being held 23 hours a day in a solitary confinement cell with the windows painted over and the lights always on. Iqbal was given minimal bedding. The air conditioning was run in the winter, the heat turned on in the summer. He was subjected to daily strip and body-cavity searches. The guards once forced him to submit to three consecutive body-cavity searches in a row while still in the same room. When he protested a fourth search, he was punched and kicked by the guards, the suit alleges. By the time he was released, he'd lost 40 pounds.

Lawyers for Mr. Ashcroft and Mr. Mueller are challenging their inclusion in the lawsuit, saying they had no personal involvement in the alleged mistreatment and no knowledge of Iqbal.

Iqbal's lawyers say that Ashcroft was a "principal architect" of the harsh detention policy and that Mueller was instrumental in adopting and carrying out the policy.

"The policy of holding post-September 11th detainees in highly restrictive conditions of confinement until they were 'cleared' by the FBI was approved by defendants Ashcroft and Mueller," Iqbal's lawsuit says.

Ashcroft and others "knew of, condoned, and willfully and maliciously agreed to subject [Iqbal and others] to these conditions of confinement as a matter of policy, solely on account of their religion, race, and/or national origin and for no legitimate penological interest," the suit says.

A federal judge refused to throw out the suit against Ashcroft and Mueller. On appeal, a panel of the Second US Circuit Court of Appeals in New York also refused to remove them from the case.

"It is plausible to believe that senior officials of the Department of Justice would be aware of policies concerning the detention of those arrested by federal officers in the New York City area in the aftermath of 9/11 and would know about, condone, or otherwise have personal involvement in the implementation of those policies," the appeals court panel said.

Solicitor General Gregory Garre is asking the Supreme Court to reverse that decision. He argues that Iqbal's lawyers have not presented enough specific evidence linking Ashcroft and Mueller to Iqbal's plight.

The case involves highly generalized and speculative allegations against Ashcroft and Mueller that are insufficient to overcome the officials' qualified immunity, Mr. Garre says in his brief to the court. "A complaint must allege sufficient facts to cross the line between possibility and plausibility," he writes.

Iqbal's lawyer, Alexander Reinert of New York, says the Justice Department is seeking to put plaintiffs' lawyers in a no-win situation, a Catch-22. In the Iqbal case, the government possesses almost all the evidence about the origin and development of the Brooklyn detention policy, he says, yet government lawyers argue that unless Iqbal can cite that evidence in his initial complaint, the suit against Ashcroft and Mueller must be dismissed regardless of what that evidence might reveal about Ashcroft's and Mueller's involvement or lack of involvement.

Mr. Reinert says the Iqbal lawsuit contains specific enough evidence to give government officials fair notice and to demonstrate the plausibility of Iqbal's case.

"This case is really about access to court and access to justice," Reinert says. "It is about the ability of plaintiffs who have suffered from government misconduct to get into court."

The case is Ashcroft v. Iqbal (07-1015). A decision is expected by June.