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Analysis: Special legal immunity for handling crises?


With Chief Justice John G. Roberts, Jr., discussing what might be a For-9/11-Only rule to limit lawsuits against high government officials during crisis times, the Supreme Court on Wednesday seemed to be edging toward embracing a new form of legal immunity.  A majority of Justices seemed concerned about requiring officials of Cabinet or near-Cabinet level to answer in court for the way they react in the immediate, perhaps-frenzied aftermath of a severe threat to national security.  The case of Ashcroft v. Iqbal (07-1015) provided the platform for voicing those worries.

The government appeal in the case seeks to spare former Attorney General John D. Ashcroft and present FBI Director Robert S. Mueller from any potential obligation to give evidence in a group of lawsuits in federal courts claiming that they were at least partly to blame for serious physical and mental abuse of Arab Muslims picked up and detained in harsh conditions in a Brooklyn, N.Y., jail in the weeks and months after the terrorist attacks on the U.S. on Sept. 11, 2001.

While U.S. Solicitor General Gregory G. Garre insisted that Ashcroft and Mueller were not asking for any special burdens on lawyers trying to make a case against high-level officials, Garre did explicitly argue that “context does matter” in considering limits on such lawsuits– specifically, the context of efforts of top officials who had acted to “protect the effective functioning of our government” following a terrorist attack.

That argument got the most enthusiastic embrace from the Chief Justice, who repeatedly attempted to get a lawyer for a post-9/11 detainee to concede that there should be a more rigorous standard for making claims of wrongdoing against the Attorney General and the FBI director “in the wake of 9/11.” The duty to plead such a case in the formal claims that launch the lawsuit, Roberts went on, perhaps should be more demanding because context does matter.

When the counsel for detainee Javaid Iqdal, Alexander A. Reinert of Yonkers, N.Y., argued that the level of pleading required should be no higher when top government officials were being sued than when, say, a corporate president was the target, the Chief Justice seemed genuinely put off. 

That comparison had arisen because the Court, in one of the hypotheticals pursued throughout the hearing, explored the differences or similarities in the standard of pleading between the post-9/11 lawsuits against Ashcroft and Mueller and a fictitious lawsuit in which the president of the Coca-Cola company was being sued on a claim that he was to blame for dead mice being found in the bottles of Coke produced at his plants.

Justice Stephen G. Breyer was the originator of that hypothetical, as he sought answers from both Garre and Reinert about when judges in federal court could shut down the attempts to get evidence directly from high-ranking officials for something that may have been done by subordinates.  When Reinert and some of the Justices suggested that there were existing protections against abuse of the evidence-gathering process in a lawsuit, Garre — supported energetically by the Chief Justice — ridiculed those as inadequate.  What is necessary, Garre said, was to have the case against the officials dismissed outright, rather than leave it to trial judges to protect them from harassing evidence demands that would divert them from their government duties.

Breyer, while giving no sign that he agreed with Garre that shutting down the 9/11 lawsuit altogether was the right outcome, appeared genuinely troubled about high officials having to face perhaps ten years of evidence demands, if there were no way for them to escape that.  Justice John Paul Stevens seemed to share some of the same concern.

If the Chief Justice were seeking to build a majority to set some higher hurdles for lawsuits such as this one, he very likely would be able to count on Justice Antonin Scalia.  Although not as active as some of the other Justices, Scalia left little doubt that he was attracted to Garre’s argument that Ashcroft and Mueller were not personally responsible for any abuse of detainees, but had devised only a completely legal policy of temporary detention.  Scilalia also suggested that the ability of high-level officials to do their jobs undiverted by lawsuits should not have to depend upon how a single federal judge felt about the suit’s continuation.

Justice Samuel A. Alito, Jr., was deeply skeptical of the factual basis for the claims against Ashcroft and Mueller.

Justice Anthony M. Kennedy said little, but did comment that he shared some of Breyer’s concern about the need to cut off evidence demands in cases that might not have a lot of substance, at least at the outset.

Only Justices Ruth Bader Ginsburg and David H. Souter made comments suggesting that they thought the claims made in Iqbal’s lawsuit against high officials probably passed the threshhold of pleading requirements, and that there may well be some substance to those claims.

Justice Clarence Thomas, following his usual practice, asked no questions and made no comments.

The Court is expected to decide the case sometime in late spring.