Sorry, Mr. Iqbal, Mr. Ashcroft is too busy to be sued by you today.

Oral argument from the court.
Dec. 10 2008 7:12 PM

The Attorney General Is a Very Busy Man

The Supreme Court seems to think that also makes him immune from litigation.

John Ashcroft and Robert Mueller. Click image to expand.
John Ashcroft and Robert Mueller

Is the claim that former Attorney General John Ashcroft and FBI Director Robert Mueller were involved in post-9/11 detention policies more or less plausible than the assertion that the CEO of Coca-Cola has intentionally slipped a mouse into your soda bottle? How busy do you have to be in order to evade a civil lawsuit? What is the plural form of mouse? These are the big questions the Supreme Court grapples with this morning as it sticks a toe into the waters of a raging national debate about legal accountability for high-level government actors for wrongs committed in pursuit of the war on terrorism.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Javaid Iqbal is a former cable installer and Pakistani citizen who was swept up along with more than 700 Muslim and Arab men in the massive post-9/11 terrorism dragnet. Not one of them was ever charged with terrorism-related crimes. Some of those deemed, like Iqbal, to be of "high interest" were detained under a "hold until cleared" policy at a high-security facility in Brooklyn. Iqbal claims that during 150 days of detention based solely on his religion and national origin, he was subject to solitary confinement, repeated cavity searches, denied medical care, and brutally beaten. He pleaded guilty to immigration charges (unrelated to terrorism) and was sent back to Pakistan in 2003. He then sued 34 current and former government officials, right up the chain of command from the prison staff to John Ashcroft and Robert Mueller. Ashcroft and Mueller moved to get themselves out of the case, claiming, among other things, that any connections between themselves and the Brooklyn detention policies were based on mere "conclusory allegations." A federal district court and the 2nd Circuit Court of Appeals disagreed, allowing the suit to go forward against the two men based on the "likelihood that these senior officials would have concerned themselves with the formulation and implementation" of these policies.

Solicitor General Gregory Garre opens his argument this morning with the claim that high-ranking officials are entitled to qualified immunity—the doctrine that shields government officials from personal liability for actions taken in their official capacities. Justice Ruth Bader Ginsburg stops him short, explaining that qualified immunity is a defense, yes, but not a mechanism for tossing the lawsuit altogether.

Justice David Souter pokes at the government claim that there is nothing connecting Ashcroft and Mueller to the detention policy, asking whether the complaint doesn't quite specifically allege that Ashcroft and Mueller "willfully and maliciously" designed it. Garre responds that the formal policy of "holding persons until cleared" was neutral and reasonable on its face. He says racial or religious classifications under the policy were made by FBI officials in the field. (You may remember this as the "bad apples" defense born at Abu Ghraib.)

The sticky wicket in this case is a 2007 Supreme Court decision called Bell Atlantic v. Twombly, which changed the test for how much evidence a plaintiff needs to show to keep from being tossed out of court. This may not sound all that consequential to you, but to America's civil-procedure professors, the effect of Twombly was akin to releasing a live ferret amid the Federal Rules of Civil Procedure.

But Garre makes a big point of arguing that he's not seeking higher pleading standards for his clients. He just wants the court to take "context" into account. And the context here seems to be that some people are just too busy to be sued. This arises both insofar as Ashcroft and Mueller are evidently too busy to be subjected to the discovery-and-trial process but also because they were too busy, post-9/11, to bother with "microscopic" decision-making about "micromanaging" detention policy in Brooklyn.

Justice Steven Breyer then offers up the hypothetical that keeps on giving: Suppose, he asks Garre, "Jones sues the president of Coca-Cola for personally putting a mouse in his bottle. Where is the rule that says he can go to the judge and say, 'I have no time for this'?" Garre says the plaintiff needs to show some kind of plausible claim. Souter points out that "plausible" claims are not the same as claims that can "probably be proven true."  Souter says an allegation that "the president of Coke is personally putting mouses [sic] in bottles" is simply bizarre. Whereas Iqbal's allegation that the FBI director was involved in its detention policies is not.

Breyer—claiming to be forgetting civil procedure ("it was probably taught on Day 4 ...")—repeats that he knows of no rule allowing people to evade the discovery rules because they are too busy. "Yes, the attorney general is very busy, and what he does is very important," Breyer says. "The president of Coca-Cola is very busy. The president of General Motors is also very busy. In fact, he's very busy at the moment. Lots of people are very important and very busy. ..."

Ginsburg asks about the findings of a report that came out of the Inspector General's Office in 2003 faulting government officials for a system that was at times chaotic and abusive. Garre replies again that whatever allegedly discriminatory actions were taken occurred "on an ad hoc basis."

Alexander Reinert represents Iqbal, and he rejects the idea that this is all about "ad hoc decisions at low levels." Justice Samuel Alito immediately starts to grill him about what specific allegations he has that Ashcroft or Mueller "approved of an illegal policy." Justice Antonin Scalia says there are "two possibilities here," one being that there was a perfectly "valid policy that was subject to distortions at the lower levels," the other being that "high-level officials themselves directed unconstitutional acts." In his view, the second is b-a-n-a-n-a-s. Reinert replies that both would be illegal.

Chief Justice John Roberts asks Reinert whether the president of Coca-Cola would be subject to the same pleading standards as the attorney general or the FBI director for decisions made "on the evening of Sept. 11." Reinert responds "certainly," and Roberts, aghast, therefore asks him the same question three more times, concluding: "You at least accept that because we're looking at litigation involving the attorney general and the director of FBI in connection with their national security responsibilities, that there ought to be greater rigor applied to our examination of the complaint." Reinert says no such special scrutiny is required under the federal rules. The rules are the rules no matter how busy or important the defendant might be or how terrible the national-security crisis.

Stevens will then ask a question about the insertion of rats into Coke bottles, leading Souter to redouble his efforts to introduce the word mouses into mainstream legal discourse. Scalia then points out that the ability of the attorney general and FBI director to do their jobs should not be dependent on the discretion of a district court judge. He pronounces district court judge the way you or I might say serial wife-beater. Not to be outdone, Alito will later wonder, in horror, "How many district judges are there in the country? Over 600? One of those district judges has a very aggressive idea about what discovery should be. What's the protection there?"

That's right. This case is about the Supreme Court justices protecting Americans from out-of-control district court judges and their out-of-control discovery rules. And that is the case even when, as here, both the lower court and the appeals court crafted sensible, nuanced limits on discovery, protecting Ashcroft and Mueller from precisely the sort of burden the court is worried about. America has survived liberal pleading rules for a very long time, in part because judges are pretty good at identifying and discarding the lame cases. But the justices seem determined to shut down just a few more trials by spontaneously manufacturing a rigorous pleading standard for high government officials who are busy with national security emergencies.

And humility that ain't.

By the end of the morning, even Breyer and Stevens start to go wobbly at the prospect of busy important men caught up in civil litigation for a decade. Hey, let's reserve trials for just the mediocre and the lazy! The stunning thing here is that, without any apparent basis in case law, statute, or the Constitution, there are at least three votes to create different pleading standards for the high and low ranking, the busy and unbusy. It's the kind of magical legal thinking that got us into the war on terrorism and the kind of magical thinking that will never let us out.