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Contesting Impunity: Damages Against Senior Officials in National Security Cases

JURIST Guest Columnist Peter Margulies of Roger Williams University School of Law says that the cases of Arar v. Ashcroft, heard en banc by the Second Circuit last Tuesday, and Iqbal v. Ashcroft, argued before the US Supreme Court last Wednesday, reveal major flaws in the policies of the Bush administration but provide a valuable opportunity for the incoming Obama administration to demonstrate that it is different...

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Two recent high-profile national security cases illustrate the Bush administration?s signature fusion of incompetence and bad intentions. Arar v. Ashcroft, heard by the en banc Second Circuit last Tuesday, and Iqbal v. Ashcroft, argued before the Supreme Court last Wednesday, are a microcosm of the Bush administration?s flaws, including detours around established legal rules, dysfunctional performance, and a persistent flight from accountability. However, each case also provides a valuable opportunity for the new administration to demonstrate that it is different.

When Maher Arar, a Canadian/Syrian citizen, landed in New York en route to Montreal, United States officials interrogated him for ten days and then deported him to Syria after receiving assurances which the Inspector General for the Homeland Security Department later found were ?ambiguous.? In Syria, Arar was beaten with electric cables and held for almost one year in the cell the size of a grave. United States officials, whom Secretary of State Condoleezza Rice has acknowledged ?mishandled? the case, acted after receiving inaccurate information from Canada and a hit from the State Department?s ?TIPOFF? system, analogous to the no-fly list that for years has included Senator Ted Kennedy on its roster of risks to national security. Officials also misled Arar?s lawyer, ensuring that Arar could not file a writ of habeas corpus in federal court to stop his deportation. Eventually, Arar, who apparently has no terrorist ties, received $10 million from Canada and sued in federal court for damages pursuant to the Supreme Court?s 1971 decision in Bivens v. Six Unknown Federal Agents. After a federal district judge and appellate panel rejected Arar?s claims, the Second Circuit Court of Appeals on its own motion ordered a hearing by the full court.

At the en banc hearing, Georgetown Law professor David Cole argued that Arar had been the target of two interrelated conspiracies, one to frustrate Arar?s access to statutory remedies under the Immigration Act, and the second to arrange Arar?s torture in Syria. Cole?s dual theories countered the first government line of defense ? that Arar had failed to take advantage of his rights under the Immigration Act, and that granting Arar a Bivens damages remedy would undermine the Immigration statute?s comprehensive scheme. Cole rightly argued that the government?s position was a study in hypocrisy, since United States officials who misled Arar?s lawyer had undermined Arar?s ability to seek recourse under the statute.

The government?s second argument was that a Bivens remedy would result in the inappropriate disclosure of communications between sovereign states about national security matters. According to the government, possible damage to United States foreign relations caused by such disclosure was a ?special factor counseling hesitation? in creating a right of action under Bivens. In a cogent response, Judge Calabresi observed that holding American officials liable for deporting an individual to effectuate torture would further reciprocity in foreign affairs, enhancing the United States? ability to deter abuses by foreign governments.

Finally, the defendants argued that they were protected by qualified immunity, since no established precedent barred deporting aliens to facilitate their torture. This argument would provide a windfall to officials who walk on the wild side. In its 1997 decision, United States v. Lanier, the Supreme Court noted that the touchstone of qualified immunity is ?reasonable warning.? Fair notice does not require a precedent that specifically prohibits any and all egregious abuse, particularly when courts have held officials accountable for the needless and wanton infliction of pain. In Lanier, Justice Souter commented that while no case has accused a state official of ?selling foster children into slavery,? no reasonable official could regard such as scheme as lawful. Any other result would transform qualified immunity from a doctrine tailored to reduce chilling effects on legitimate policy choices to a license for official overreaching.

A holding rejecting the government?s position in Arar would also not leave the United States defenseless against terrorists. Officials would properly shrink from sending an individual to a country like Syria that for years has resided on the State Department?s list of human rights violators. However, officials had other courses of action available, including detaining Arar in the United States under the immigration laws until they could sort out the inconsistent stories in the case.

Ashcroft v. Iqbal, in which the Supreme Court heard argument last Wednesday, raises the same concerns about overreaching with impunity. In Iqbal, undocumented aliens detained in the post-September 11 round-up alleged that Attorney General Ashcroft and other senior officials had established a policy that called for the plaintiffs? abusive treatment. Strong evidence, including a report from the Justice Department?s Inspector General, demonstrated that the plaintiffs had been beaten by inmates and guards after their detention. The facilities where the abuse occurred were under the supervision of the Attorney General. The Supreme Court considered whether to require that plaintiffs suing senior officials assert more specific factual claims, to avoid subjecting senior officials to burdensome discovery that could disrupt performance of their duties.

As it turned out, the September 11 round-up was a rendezvous with incompetence. FBI agents sorted through 90,000 tips based not on evidence of terrorist ties but on bias, fear, and personal feuds. Moreover, senior officials were aware of reports of detainee abuse within two weeks. The failure to investigate reports of abuse could help prove a claim of ?deliberate indifference,? which is actionable under Bivens and outside the scope of officials? qualified immunity.

Requiring more specific pleading in Iqbal, like a ruling for the government in Arar, would license official overreaching. Current rules provide ample protection against discovery abuses. Indeed, the district judge in Iqbal had already stayed discovery pertaining to senior officials. While Scalia and several other justices were reluctant to leave senior officials at the mercy of individual district judges, those judges appear able to balance opportunity costs for senior officials and plaintiffs? need for information in the search for government accountability. Rigid pleading rules would place a thumb on the scales of justice, leaving victims without redress and permitting officials to abuse their power with impunity.

While the prospect of greater license for official lawlessness and incompetence is alarming, both Arar and Iqbal also present opportunities for the incoming administration. The Obama administration could settle both cases, as Canada has with Arar and the Bush administration has done with one of the original Iqbal plaintiffs. This move would provide justice to plaintiffs who have been wronged and head off damaging judicial decisions. It would also signal a clean break from the arrogance and haste of the past eight years. As members of the Second Circuit hinted during the Arar argument, the Obama administration should take advantage of this chance to highlight the virtues of an accountable government.

Peter Margulies is a professor at Roger Williams University School of Law

Full post as published by JURIST - Forum on December 15, 2008 (boomark / email).