SUPREME COURT REPORT
was thrown out based on the “state secrets privilege.”
Khaled el-Masri, a German of Lebanese descent, was on
a holiday tour bus in the Balkans in 2003 when he was
pulled off for questioning at a border crossing. His passport was taken, and he was accused of being a terrorist.
After 23 days of questioning, he was blindfolded, taken
to the airport, chained to the floor of a military plane
and flown to Afghanistan. For the next four months, el-Masri says, he was beaten and tortured by CIA agents.
Six months into his ordeal, U.S. officials finally realized he was not Khalid al-Masri, a German man who
was sought for his role in the 9/11 attacks. Rather than
admit the mistake and return el-Masri to Germany, he
was blindfolded and flown back to the Balkans. He was
driven at night and dropped along a road in Albania. He
eventually returned to Germany and sued the CIA with
the help of the ACLU. He sought damages for his “
unlawful abduction, arbitrary detention and torture by
agents of the United States.”
BUSH ADMINISTRATION LAWYERS SAID THE SUIT MUST
be dismissed without a hearing because it could reveal
state secrets. They relied on U.S. v. Reynolds, the 1953
ruling that upheld the government’s use of the state
secrets privilege to block three widows from seeing the
accident report on the crash of a B- 29. Agreeing with
the government, a federal judge in Virginia and the
4th U.S. Circuit Court of Appeals at Richmond dismissed el-Masri’s complaint. The Supreme Court refused to review the case in 2007. “In a nation committed
to the rule of law, the government’s unlawful activity
should be exposed, not hidden behind a state secrets
designation,” said Steven R. Shapiro, the ACLU’s legal
director, when the case was dismissed.
In December, the focus was on pleading standards
when administration lawyers urged the Supreme Court
to dismiss a lawsuit against former Attorney General
John Ashcroft and FBI Director Robert Mueller. The
pair were sued by Javaid Iqbal, a Pakistani native who
worked as a “cable guy” on Long Island and was among
the 700 Muslim men arrested and held after the 9/11
attacks. None was charged with terrorism offenses, although quite a few, including Iqbal, pleaded guilty to
immigration violations. Iqbal was held in solitary confinement for more than five months, and he said he was
strip-searched and beaten. He also alleged the Muslim
men were singled out for harsh treatment because of
their race and religion.
Iqbal’s suit, which named dozens of low-level officials
as well, fared much better than the others. A federal
judge in Brooklyn and the 2nd Circuit at New York City
refused to dismiss it. At the Supreme Court, Solicitor
General Gregory Garre argued the pleadings were inadequate because they did not show direct evidence of
“personal involvement” by Ashcroft and Mueller. He
also relied on the court’s recent ruling in Bell Atlantic v.
Trombley, an antitrust case, holding that the pleadings
must state a claim that is not just possible, but plausible.
The case of Ashcroft v. Iqbal raised an important question involving civil rights claims against government officials: How much direct evidence is needed at the
pleading stage to bring a suit against high-level officials? The justices gave Garre’s argument a sympathetic
hearing. Garre said the court should set a high barrier
against such claims so that top government officials do
not have to work under a threat of future lawsuits and
their burden of discovery. He said this is especially important when national security is at stake.
Lawyers for the plaintiffs, however, talked about the
importance of justice and accountability. “Plaintiffs will
never be able to provide the level of detail Ashcroft and
Mueller would demand at the beginning of a lawsuit,
because that information is in the exclusive control of
the government and can only be accessed after a lawsuit has begun,” says Rachel Meeropol, a lawyer for the
Center for Constitutional Rights in New York City. “It’s
a catch- 22 that would always let high-level officials off
the hook,” she says. The CCR brought a class action suit
on behalf of the 700 Muslim men who were detained in
New York. The suit was pending before a district judge
while Iqbal’s appeal was before the Supreme Court.
THE SUIT BROUGHT BY THE FOUR EX-GUANTANAMO PRIS-
oners, all of whom were British citizens, was thrown out
early last year by the U.S. Court of Appeals for the District of Columbia Circuit on the grounds these foreigners had no “clearly established” rights under the U.S.
Constitution. The men said they had been abused
and tortured at Guantanamo. They said they had been
shackled in painful positions, threatened by dogs, and
subjected to intense heat and cold. They also said they
had been harassed during their daily prayers. The lead
plaintiff, Shafiq Rasul, was also the lead plaintiff in the
court’s 2004 ruling that first held the Guantanamo detainees had the right to habeas corpus.
After the men were freed and returned home to
England, they sued Pentagon officials, including former Defense Secretary Donald Rumsfeld. The suit
appeared dead, but on Dec. 15, the Supreme Court revived it. In a one-line order, the appeals court ruling
was vacated, and the case was sent back to be reconsidered under Boumediene v. Bush. That decision last year
recognized that the Constitution’s protections extend to
“We are delighted,” Lewis says. He called the court’s
action “a clear signal to the court of appeals that its decision, which refused to recognize a right not to be tortured and a right to religious freedom at Guantanamo,
was plainly wrong and should be overturned.” ■
David G. Savage covers the U.S. Supreme Court for the Los
Angeles Times and writes regularly for the ABA Journal.