Apples and Oranges

Slate's blog on legal issues.
June 17 2008 12:48 PM

Apples and Oranges

Guess I'm missing something, Phil, but what's the connection you see between the Iqbal grant and the prosecution-planning conference?

Ashcroft v. Iqbal concerns the resort by an individual plaintiff to federal court to seek civil damages against high-ranking federal officials. In so doing, he followed  a decades-old path: In  Bivens v. Six Unknown Federal Narcotics Agents (1971) the court, by a 6-3 margin, had established such actions as a corollary to  42 U.S.C. § 1983 , that portion of the Civil Rights Act of 1871 authorizing suits against state officials alleged to have committed deprivations of civil rights. In contrast, the conference appears to be an effort by private persons to develop a criminal case against high-ranking U.S. officials.

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The first case ought to be routine. Deborah's post thus is spot-on in assuming an unfriendly grant of review . The loser below was a high-ranking U.S. official, challenged on account of his actions post-9/11, by means of a litigation vehicle, the Bivens action, that has drawn conservative ire since its inception.

The second instance is quite different. It is true that, in many countries adhering to a continental legal tradition, private persons may act as parties civiles who develop a criminal case and present it to public prosecutors for further investigation, prosecution, and punishment. The procedure's been invoked a number of times—to date unsuccessfully—in efforts to use courts in Germany and elsewhere as forums for criminal actions against U.S. officials like former Defense Secretary Donald Rumsfeld for post-9/11 policies. But there exists no such mechanism in the United States by which the "planning conference" might bear fruit. In any event, there's an apples-and-oranges difference between civil-damages suits and criminal prosecutions ending in imprisonment.

So what's the link?

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