// Sumpreme Court to Hear Challenge from Muslims Held after 9/11
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« on: Jun 18, 2008 04:31 AM »


Court to Hear Challenge From Muslims Held After 9/11


 
By LINDA GREENHOUSE
Published: June 17, 2008
WASHINGTON — The Supreme Court on Monday agreed to decide whether top government officials can be sued for damages by the Muslim men who were rounded up and imprisoned under harsh conditions in the immediate aftermath of the terrorist attacks of Sept. 11, 2001.

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Blogrunner: Reactions From Around the WebThe case is an appeal by the Bush administration on behalf of John D. Ashcroft, who at the time was attorney general, and Robert S. Mueller III, then as now the director of the Federal Bureau of Investigation.

The federal appeals court in Manhattan, in a pretrial decision last June, rejected the claims of immunity raised by the two officials, as well as by other defendants, including the former head of the Bureau of Prisons and the former warden of the Metropolitan Detention Center, where many of the men were held. The lower-ranking officials also appealed that ruling to the Supreme Court, but the justices took no action on their petitions on Monday.

The lawsuit was filed by two men, Javaid Iqbal, a Pakistani, and Ehad Elmaghraby, an Egyptian, both of whom were deported after months of confinement in a section of the Brooklyn prison known as Admax-Shu, which stands for administrative maximum special housing unit. Mr. Elmaghraby settled his claims for a $300,000 payment from the government and is no longer in the case.

Mr. Iqbal, who has not settled, was a 33-year-old cable television installer on Long Island at the time of his arrest on Nov. 2, 2001. He lived in Hicksville with his wife, a United States citizen, and had an application pending for a green card. He was charged with document fraud for using a Social Security card that belonged to someone else.

Mr. Iqbal pleaded guilty after several months of confinement in the special unit, where he was subjected to daily body-cavity searches, sometimes several times a day, as well as to beatings and to extremes of hot and cold. He was kept in solitary confinement with the lights in his cell constantly on. He lost 40 pounds during six months in the special unit, before he was placed in the general prison population.

Mr. Iqbal’s lawsuit maintains that he was treated as a “high interest” prisoner solely because of his religion and national origin, under policies and procedures directed by Mr. Ashcroft and Mr. Mueller and carried out by the other defendants. The suit also maintains that the conditions of confinement in the special unit violated minimal constitutional standards, of which the defendants should have been aware.

Although Mr. Iqbal is now the sole plaintiff in his case, the Supreme Court’s decision will affect another lawsuit that raises similar claims on behalf of seven named plaintiffs and a class of hundreds of others. That case, Turkmen v. Ashcroft, was argued before the United States Court of Appeals for the Second Circuit in February.

In refusing the defendants’ request to dismiss the Iqbal case, the Second Circuit found that the accusations, although not yet proven, were at least “plausible.” That was sufficient to permit Mr. Iqbal’s lawyers to proceed to pretrial discovery to establish the facts, Judge Jon O. Newman wrote for the appeals court.

The government’s appeal maintains that the case against the two high officials should have been dismissed because it was based on nothing but “bare and conclusory allegations” and lacked evidence that the two condoned or even knew about the treatment Mr. Iqbal alleges to have occurred.

The standard for allowing the case to go forward should be higher than mere plausibility, the government said, pointing to recent Supreme Court decisions, including one in an antitrust case last year, that raised the standard for the evidence that plaintiffs must provide at the initial stage in order to withstand a motion to dismiss their lawsuit.

The government’s brief said the “vital importance” of the case, Ashcroft v. Iqbal, No. 07-1015, was “amplified in the context of high-ranking officials charged with responding to an extraordinary national-security crisis like the September 11 attacks.”

In his opinion for the appeals court last June, Judge Newman discounted the relevance of the Sept. 11 context for the rights that Mr. Iqbal was asserting. “The strength of our system of constitutional rights derives from the steadfast protection of those rights in normal and unusual times,” he wrote.

Justice Anthony M. Kennedy, writing for the Supreme Court majority last week in the decision on the rights of the Guantánamo detainees, expressed a similar sentiment when he said that “the laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

In other action on an unusually quiet day for a mid-June Monday, the court issued a decision in an immigration case. The justices divided 5 to 4 in rejecting the government’s view of how two provisions of federal immigration law interact when a deportable alien agrees to leave the country voluntarily but at the same time wishes to pursue an appeal of the deportation order.

Accepting “voluntary departure” is often the best outcome for an immigrant who has been ordered deported, because it preserves the prospect of legal re-entry at some point. But in the government’s view, which the federal appeals court in New Orleans upheld, an immigrant who departed voluntarily forfeited the right to appeal.

That choice was “untenable,” Justice Kennedy wrote for the majority on Monday. Instead, he said, the immigrant should be able to withdraw the request for a voluntary departure and keep the appeal alive. While this strategy would leave the immigrant subject to penalties and involuntary removal if the appeal was not decided within 90 days, Justice Kennedy said the Board of Immigration Appeals should ordinarily grant a stay of the removal order in those circumstances as long as the appeal was “nonfrivolous.”

The decision, Dada v. Mukasey, No. 06-1181, came in an appeal by a Nigerian, Samson T. Dada, who overstayed his visa and claimed he was entitled to remain in the country due to marriage to an American citizen. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined the opinion.

In a dissenting opinion, Justice Antonin Scalia objected that “the court lacks the authority to impose its chosen remedy.” He said it was “utterly commonplace that electing to pursue one avenue of relief may require the surrender of certain other remedies.” Chief Justice John G. Roberts Jr. and Justice Clarence Thomas signed Justice Scalia’s dissent. Justice Samuel A. Alito Jr. filed a brief dissenting opinion of his own.

Without comment, the court turned down a closely watched case from Illinois challenging the state’s child welfare practice of imposing “safety plans” that separate parents and children immediately following accusations of neglect or abuse, before a judicial hearing takes place.

The case, Dupuy v. McEwen, No. 07-1075, was a class-action lawsuit brought on behalf of thousands of parents, who maintained that they were effectively forced to go along with the plans, even when the accusations were unfounded, in order to avoid having their children placed in foster care. The federal appeals court in Chicago rejected the constitutional challenge, ruling that plaintiffs had failed to show sufficient evidence of coercion.

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