Attorney General John Ashcroft and current FBI
Director Robert Mueller. Writing for the court, Justice
Anthony M. Kennedy said the plaintiff put forth only
“bare assertions” and “conclusory” statements that
Ashcroft and Mueller were responsible for a racially
and religiously discriminatory policy that targeted
Arab Muslim men in the wake of the terrorist attacks
of Sept. 11, 2001.
What wasn’t clear was what would suffice to continue
the suit. Kennedy agreed that in the fall of 2001, hundreds of Arab Muslim men in the New York area were
swept up by federal agents and questioned, often for
months. They included Javaid Iqbal, a
Pakistani immigrant who was a cable
television installer on Long Island.
At the time, top officials at the
Justice Department suspected the
al-Qaida network had sleeper cells in
the U.S., with plotters ready to carry
out further terrorist plots. Ashcroft
said he would use any and all legal
means to gather intelligence and expose the plotters. Most of those who
were arrested were immigrants from
Arab, Muslim and South Asian countries. However, none of the more than
1,000 people taken into custody by
the FBI was later prosecuted as a terrorist, although many—including
Iqbal—were charged with immigration offenses.
Kennedy also agreed that 184 men, including Iqbal,
were held for months in isolation in a maximum security prison in Brooklyn and subjected to harsh questioning. Iqbal said he was shackled, kicked, punched,
strip-searched and screamed at by guards who called
him a “terrorist” and a “Muslim.” He lost 40 pounds
when he was incarcerated and said he was denied needed medical care after one of the beatings.
Iqbal later pleaded guilty to using false documents
to work in the United States and was deported to Pakistan. His suit named 34 officials and called Ashcroft
the “prime architect” of the interrogation and imprisonment policy.
So what was lacking in his complaint? Evidence that
Iqbal and the other Arab Muslim men were singled out
by Ashcroft for harsh interrogation in maximum security
because of their race and religion, Kennedy said. The
complaint “does not contain any factual allegation sufficient to plausibly suggest [Ashcroft’s] discriminatory
state of mind,” he wrote.
“THE COURT IS
YOU HAVE TO HAVE
FACTS, NOT JUST
BEFORE YOU FILE
HARD TO ADDUCE
IT IS NOT CLEAR HOW A FORMER PRISONER COULD SHOW
evidence of Ashcroft’s state of mind without being able
to question officials and inspect documents. Former
Yale law dean Harold Koh, who filed a friend-of-the-court brief on behalf of Iqbal, calls this the catch- 22
approach to civil litigation. That means, says Koh,
plaintiffs are told they must include certain facts in the
pleading that can be obtained only through discovery.
Kennedy’s opinion also strongly hinted that Ashcroft
and Mueller were entitled to immunity from a suit such
as this because their actions were reasonable. “It should
come as no surprise 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 purpose of the policy was to target neither Arabs nor Muslims,” he wrote.
Chief Justice John G. Roberts Jr.
and Justices Antonin Scalia, Clarence
Thomas and Samuel A. Alito Jr. agreed.
While Ashcroft and Mueller were dismissed from the suit, the justices said
“we express no opinion” on Iqbal’s allegations involving prison officials.
This time, retiring Justice Souter,
the author of Twombly, spoke for the
dissenters. He said it was plausible
to believe, as Iqbal had claimed, that
Ashcroft and Mueller “were at the very
least aware of the discriminatory deten-
tion policy and condoned it and perhaps
took part in devising it.” This, he said,
should be sufficient to permit the suit
to go forward and to let the plaintiffs
try to prove these top officials implemented a discrimi-
The conservative Washington Legal Foundation
called the decision “particularly welcome” in the area
of national security, and for civil litigation generally. “It
ensures the ability of senior national security officials
to perform their duties without the distraction of having
to defend against claims for money damages,” says
Richard Samp, counsel for the WLF. “By enabling all
defendants to win dismissal of unsubstantiated claims,
it will make it more difficult for plaintiffs to coerce settlements from defendants seeking to avoid the costs
On the other side, the New York City-based Center
for Constitutional Rights denounced the ruling. Its lawyers, in a parallel suit, represented a class of Muslim,
Arab and South Asian individuals who were arrested
and held after 9/11, in some instances based on “
nothing more than a general suspicion of men who ‘looked
Arab,’ ” the group said.
Rachel Meeropol, an attorney for the CCR, called
Iqbal “a grave disappointment” and said it “makes it
easier for those who run our country to escape liability
when they act with subordinates to target people for
the color of their skin or the tenets of their faith.” ■
David G. Savage covers the U.S. Supreme Court for the Los
Angeles Times and writes regularly for the ABA Journal.