High court weighs lawsuit against FBI head, ex-AG

WASHINGTON (AP) -- Supreme Court justices voiced concern Wednesday about including former Attorney General John Ashcroft and FBI Director Robert Mueller in a lawsuit that claims prisoners detained after the Sept. 11 attacks were abused because of their religion and ethnicity.

Yet the court offered no clear indication that it was prepared to order Ashcroft and Mueller removed from a suit filed by Javaid Iqbal, a Pakistani Muslim who spent nearly six months in solitary confinement in New York in 2002.

Iqbal, since deported from the United States, says Ashcroft, Mueller and others implemented a policy of confining detainees in highly restrictive conditions because of their religious beliefs or race.

"The question here is, who is responsible?" said Alexander Reinert, Iqbal's Yonkers, N.Y.-based lawyer.

Solicitor General Gregory Garre argued on behalf of Ashcroft and Mueller that nothing in Iqbal's complaint ties the allegedly discriminatory acts of lower-level officials to his clients.

The case will help determine when Cabinet officers and other high-ranking officials can be sued over allegations that lower-level government workers have violated people's civil rights.

A federal appeals court said the lawsuit could proceed, but the Bush administration says the high-ranking officials should be dismissed from the suit because Iqbal lacks evidence that they intended or condoned the harsh treatment.

The New York-based 2nd U.S. Circuit Court of Appeals said that Ashcroft, Mueller and 32 other former and current government employees named in the lawsuit may eventually be dismissed as defendants if evidence shows they were not sufficiently involved in the activities to support a finding of personal liability.

The appeals court ruling may offer the justices a way to resolve the case narrowly. The court suggested, and the trial judge agreed, that proceedings against Ashcroft and Mueller would be put on hold to see whether the questioning of other government workers turned up evidence of the involvement of their higher-ups.

"That may be what happened here," Justice Samuel Alito said. But, he asked, what if another court in another lawsuit was more aggressive?

Reinert replied that the Supreme Court could issue an opinion establishing the 2nd Circuit's ruling as a model.

The government is relying on a decision issued by the Supreme Court last year in a lawsuit over alleged antitrust violations. In that case, the court made it harder for plaintiffs to get past an early hurdle in litigation before defendants even are asked to turn over evidence that could be used to prove what is being claimed.

Iqbal was arrested at his Long Island home on Nov. 2, 2001, and charged with nonviolent federal crimes unrelated to terrorism. Two months later, he was moved to a holding facility in Brooklyn, where he was in solitary confinement for more than 150 days without a hearing, his lawsuit alleges.

He said he was subjected to physical and verbal abuse, including unnecessary strip searches. On the day he entered solitary confinement, he says, he was thrown against a wall, kicked in the stomach, punched in the face and dragged across a floor by federal prison officers.

He was cleared of any involvement in terrorism and was deported in January 2003 after pleading guilty to fraud and being sentenced to a year and four months in prison.

The appeals court said it recognized the gravity of the situation confronting government investigators after the 2001 attacks and agreed that some forms of government action that otherwise would not be proper are permitted in emergencies.

But it said most of the rights cited in the lawsuit "do not vary with surrounding circumstances, such as the right not to be subjected to needlessly harsh conditions of confinement, the right to be free from the use of excessive force and the right not to be subjected to ethnic or religious discrimination."

A 2003 Justice Department report found "significant problems" with the treatment of post-Sept. 11 detainees at the facility in Brooklyn, including physical abuse and mistreatment.

The case is Ashcroft and Mueller v. Iqbal, 07-1015.

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