“Willfully and maliciously”

By Michelle Chen May 18, 2009

What happened to Javaid Iqbal in some of the most shadowy corners of post-9/11 American law enforcement was not the responsibility of top White House officials, according to the Supreme Court. The case, Iqbal v. Ashcroft, involved the question of whether former Attorney General John D. Ashcroft and current FBI Director Robert Mueller should be held accountable for Iqbal’s treatment in the post-9/11 federal crackdown that terrified Arab and Muslim communities nationwide. The decision focuses not on direct abuses perpetrated by lower-level officers, but whether Mueller and Ashcroft could be liable for the conditions Iqbal endured while detained in New York City The lawsuit argued that Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject [Iqbal] to these conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Justice Souter’s dissenting opinion summarizes Iqbal’s claims, which reflect the many complaints documented by civil liberties activists:

…on the day he was transferred to the special unit, prison guards, without provocation, “picked him up and threw him against the wall, kicked him in the stomach, punched him in the face, and dragged him across the room.”… He says that after being attacked a second time he sought medical attention but was denied care for two weeks.… According to Iqbal’s complaint, prison staff in the special unit subjected him to unjustified strip and body cavity searches,… verbally berated him as a “‘terrorist’” and “‘Muslim killer,’” … refused to give him adequate food,… and intentionally turned on air conditioning during the winter and heating during the summer,… He claims that prison staff interfered with his attempts to pray and engage in religious study… and with his access to counsel.”

The accountability issue turns on how high up the chain of command the responsibility lies for such brutality—a question tied not only to the post-9/11 criminalization of Muslim and Arab Americans, but also the violence and degradation that has colored the entire War on Terror, from Guantanamo to Abu Ghraib. In Iqbal’s case, the majority of the court found that he did not “plead sufficient facts to state a claim for purposeful and unlawful discrimination.” On the legitimacy of the arrest and detention policies, the court wrote, “Given that the September 11 attacks were perpetrated by Arab Muslims, it is not surprising that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the policy’s purpose was to target neither Arabs nor Muslims.” As the White House comes under pressure to prosecute Bush administration officials for torture and abuse, Lyle Denniston at SCOTUS Blog questions whether the court’s decision could amount to “a pass for high officials”:

Because the Iqbal case involved an FBI “sweep” carried out within the U.S. against individuals living here legally, it says nothing directly about what an alien detainee claiming torture or abuse at some U.S. detention site overseas — including Guantanamo — would have to say in a lawsuit against high officials to keep the case from being dismissed. It seems doubtful, though, that the Court would relax the evidence-pleading standard it has adopted for a domestic case for use in an overseas-based case. It no doubt will fall first to the lower courts to spell out when, if ever, a high official has such a deep involvement in torture or abuse will face legally accountability for the actions.

For Iqbal, the pleas of maltreatment seem even more moot now; like many of those rounded up in the government’s counterterrorism sweeps, he was slapped with immigration violation charges. He has since been deported back to Pakistan. But as the current administration grapples with the aftermath of its predecessor’s aggression, the quest for accountability is not so much about compensating individuals, as it is about restoring a law enforcement system poisoned by impunity.