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The Attorney General Is a Very Busy Man

The Supreme Court seems to think that also makes him immune from litigation.

By Dahlia LithwickPosted Wednesday, Dec. 10, 2008, at 7:12 PM ET

Is the claim that former Attorney General John Ashcroft and FBI Director Robert Mueller were involved in post-9/11 detention policies more or less plausible than the assertion that the CEO of Coca-Cola has intentionally slipped a mouse into your soda bottle? How busy do you have to be in order to evade a civil lawsuit? What is the plural form of mouse? These are the big questions the Supreme Court grapples with this morning as it sticks a toe into the waters of a raging national debate about legal accountability for high-level government actors for wrongs committed in pursuit of the war on terrorism.

Javaid Iqbal is a former cable installer and Pakistani citizen who was swept up along with more than 700 Muslim and Arab men in the massive post-9/11 terrorism dragnet. Not one of them was ever charged with terrorism-related crimes. Some of those deemed, like Iqbal, to be of "high interest" were detained under a "hold until cleared" policy at a high-security facility in Brooklyn. Iqbal claims that during 150 days of detention based solely on his religion and national origin, he was subject to solitary confinement, repeated cavity searches, denied medical care, and brutally beaten. He pleaded guilty to immigration charges (unrelated to terrorism) and was sent back to Pakistan in 2003. He then sued 34 current and former government officials, right up the chain of command from the prison staff to John Ashcroft and Robert Mueller. Ashcroft and Mueller moved to get themselves out of the case, claiming, among other things, that any connections between themselves and the Brooklyn detention policies were based on mere "conclusory allegations." A federal district court and the 2nd Circuit Court of Appeals disagreed, allowing the suit to go forward against the two men based on the "likelihood that these senior officials would have concerned themselves with the formulation and implementation" of these policies.

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