Supreme Court to hear arguments in case tied to 9/11,4110505.story

December 10, 2008

WASHINGTON - On Nov. 2, 2001, Javaid Iqbal, a Pakistani immigrant working as a cable TV installer, was arrested in his Hicksville home in the post-911 sweep of Arab and Muslim men ordered by Attorney General John Ashcroft.

Like many of those picked up in New York, Iqbal landed in solitary confinement in a special unit in the Brooklyn Metropolitan Detention Center, where, he charges, he was harassed and mistreated because of his religion and nationality.

After being cleared of ties to terrorism, Iqbal in 2004 sued everyone from jail guards he accused of abusing him to the men he blames for ordering what he calls illegal discriminatory policies - Ashcroft and FBI Director Robert Mueller.

Today, the Supreme Court will hear arguments by lawyers for Iqbal and the government about whether Iqbal should be able to pursue his lawsuit against Ashcroft and Mueller.

The outcome could have significant ramifications.

"Really, what's at stake is a question of litigants having access to the court and means of holding persons in high offices responsible for unconstitutional policies," said Iqbal's attorney, Elizabeth Koob of New York.

Under Ashcroft and Mueller's 911 policies, she said, hundreds of men were arrested in the search for terrorists, designated as "high interest" prisoners and placed in solitary confinement solely because of their religion and nationality.

But George Terwilliger, a former Justice Department attorney, said what is really at stake is the ability of high-ranking public officials to act without worrying about lawsuits, especially at a time like 9/11.

The Bush administration argues Iqbal's claims should be dismissed because of "qualified immunity," a protection that generally shields top officials for broad policy decisions.

The Supreme Court's ruling in Iqbal's case will affect another lawsuit, Turkmen vs. Ashcroft, in which seven named plaintiffs and a class of hundreds of others charge similar abuse and discrimination.

In his lawsuit, Iqbal says while in solitary for six months in 2002 he was beaten, stripped and searched, underfed and harassed for his religion. He said he lost 40 pounds. He pleaded guilty to document fraud and was deported in 2003 to Pakistan.

So far, the lower courts have sided with Iqbal, allowing him to pursue his still-untried case.

The District Court in Brooklyn denied the government's motion to dismiss.

The Second Circuit of Appeals in Manhattan affirmed most of that ruling, finding that the accusations, while not proven, were at least "plausible."

The government emphasizes that Ashcroft and Mueller were making decisions in "an extraordinary national-security crisis like the Sept. 11 attacks."

But the appeals court said, "The strength of our system of constitutional rights derives from the steadfast protection of those rights in normal and unusual times."