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The personal liability of high-ranking officials for the mistreatment of Muslim men swept up after Sept. 11, 2001, and segregated at the Metropolitan Detention Center in Brooklyn was sharply contested on Wednesday at the U.S. Court of Appeals for the Second Circuit. For almost two hours, a three-judge panel peppered lawyers for top U.S. Department of Justice and FBI officials, the former warden of the detention center, and FBI and corrections supervisors who argued that Eastern District Judge John Gleeson was wrong to reject their claims of qualified immunity. The appeal was brought by the government in the case of Javaid Iqbal, a Muslim of Pakastani origin who was arrested for credit card fraud during the post-9/11 sweep and detained for more than seven months in Brooklyn. While Mr. Iqbal ultimately pleaded guilty to the charge, served his sentence and was deported, he claims he was placed in the detention center’s solitary confinement unit because the FBI had designated him and more than 700 other Muslims as “high interest” subjects in the terror attacks. Mr. Iqbal claims he was subject to beatings by guards, dragged along the ground in shackles, harassed while trying to pray and denied adequate medical care. His mistreatment was one example, his lawyers say, of widespread detainee abuse at the detention center. A report by the Justice Department’s Office of Inspector General issued in June 2003 criticized harsh conditions at the facility for the detainees. Plaintiff’s lawyers have cited the report in their suits against the government under the Federal Tort Claims Act and in individual lawsuits against former Attorney General John Ashcroft and former FBI Director Robert Mueller and other officials. The report was particularly critical of the inconsistent manner in which the FBI, and then the Bureau of Prisons, imposed a “hold-until-cleared” of suspicion policy for the detainees. Mr. Iqbal makes an equal protection claim as well as procedural and substantive due process claims. Judge Gleeson ruled in 2005 that top officials would have to, at a minimum, answer some questions about the policy (NYLJ, Sept. 29, 2005). Mr. Iqbal’s co-plaintiff, Ehab Elmaghraby, has settled with the government. On Wednesday, Judges Jon Newman, Jose Cabranes and Robert Sack heard lawyers for the defendants take different tacks on whether or not the U.S. Supreme Court has set a heightened pleading standard for claims against which the defense of qualified immunity is invoked. Each of the lawyers claimed that Mr. Iqbal’s complaint stated only “conclusory” allegations that warranted a dismissal by Judge Gleeson. Lauren Resnick of Baker & Hostetler represents two former FBI supervisors that Mr. Iqbal claims were responsible for his mistreatment due to his segregation under the “hold-until-clear” policy. Ms. Resnick contended that the supervisors should not be held liable because the FBI did not “direct or request” that Mr. Iqbal and others be held in administrative segregation. On the face of the complaint, she said, his claim should be dismissed before discovery commenced. But, Judge Newman said, “what really happens [to them] depends on whether they are [designated] high interest?” When Ms. Resnick said that was not necessarily the case, Judge Newman responded, “So senior people at the FBI said that if they were walking around in the general population, that’s OK with us ?” Judge Newman then asked, “You are urging a higher pleading standard, are you not?” Ms. Resnick said courts are split on the issue and, while acknowledging that the qualified immunity context is “unique,” said courts would benefit from some clarification on this point from the U.S. Supreme Court. Qualified immunity meaning The lawyers were divided on the meaning of the Supreme Court’s decision in Crawford-El v. Britton, 523 U.S. 574, (1998), in the context of qualified immunity – which protects officials from burdensome litigation and discovery in the course of performing their duties as long as they are not violating clearly established law. Michael Martinez of Crowell Moring in Washington D.C., who represents the detention center’s former Warden Dennis Hasty, said Crawford-El did not stand for the proposition that plaintiffs have to meet a heightened pleading standard-one that goes beyond simply giving notice to the defendant about the nature of the allegations. But a body of law has developed over the years requiring more than notice pleading where qualified immunity is involved. Plaintiffs must “put forward specific non-conclusory allegations that establish things like improper motive,” Mr. Martinez said. “We still require something more than bare-bones allegations.” “How is that not a heightened pleading standard?” Judge Sack asked. Judge Newman asked whether or not there had to be “some discovery” on whether the warden knew what the correctional officers under his command were doing. “Unless he’s [Iqbal] called into the warden’s office and [the warden says] ‘I’d like you here while I give my marching orders,’ doesn’t that mean that wardens are never liable?” the judge asked. Mr. Martinez answered no and said the complaint only had to go further than saying Mr. Hasty, the warden “knew or should have known” about the abuse. “But this was going on for months.” Judge Sack said. Principal Deputy Solicitor General Gregory Garre said Crawford-El stands for the proposition that a “trial court must exercise its discretion in a way that protects the substance of a qualified immunity defense”-with the goal being to avoid “burdensome litigation” and plaintiffs are required to show more to survive a prediscovery motion to dismiss. “Whether you think of that in terms of a heightened pleading standard or not, that’s the standard,” he said, adding that the complaint fails in that regard as to Mr. Ashcroft and Mr. Mueller. Mr. Garre said he was “happy to defend” the “policy of holding post-9/11 detainees in a highly restricted environment until they were cleared by the F.B.I. That policy violated no clearly established constitutional right.” Burden of proof Alex Reinert of Koob & Magoolaghan, who represents Mr. Iqbal along with attorneys from the Urban Justice Center and Weil, Gotshal & Manges, said the defendants were assuming “adversarial discovery before the filing of a complaint,” and his client went well beyond “conclusory” allegations. The Crawford-El case, he said, was not about heightened pleading standards but about the burden of proof. Crawford-El, he said, meant that a district court should use its discretion not to prevent “any discovery, just burdensome discovery.” The judges asked Mr. Reinert whether the actions of officials post-9/11 should be weighed in the context of the nationwide imperative to capture possible co-conspirators and prevent further attacks. Regardless of the severity of the attacks, Mr. Reinert said, officials knew that “it’s been clearly established for years that you can’t put people in conditions of confinement” like those to which Mr. Iqbal was subjected. Mr. Iqbal, he said, was subject to “horrific abuse” that was the direct result of a policy initiated from the top and he was “not getting hearings” like “everyone else in the MDC who was not Muslim was getting hearings.” He continued, “We made these allegations, your honor, but we don’t have to prove them here,” adding that the Supreme Court has said “there is no heightened pleading standard unless the rules say there is.” – Mark Hamblett can be reached at [email protected]

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