The Supreme Court’s decision in Ashcroft v. Iqbal makes me wonder, how did we go from public servants to government officials so monumentally important and distant from the people they purport to serve that they are beyond the reach of an ordinary person in a court of law?
As Liptak reports on the decision:
Mr. Iqbal, a cable television installer on Long Island, was among thousands of Muslim men rounded up after the Sept. 11 attacks. Some, considered to be “of high interest,” were held in a special unit of the Metropolitan Detention Center in Brooklyn.
One of them was Mr. Iqbal, who, he said, was kept in solitary confinement at the center, denied medical care and subjected to daily body-cavity searches, beatings and extreme temperatures. He said that he had been called a terrorist and a “Muslim killer” and that he had lost 40 pounds during six months in the special unit.
He eventually pleaded guilty to identity fraud and was deported to Pakistan.
Now I’m no softie on identity fraud, but I sincerely doubt that’s what the big guys in Washington had in mind when they rounded up every Muslim in sight after 9/11 and decided that daily body cavity searches were critical while they remained in solitary confinement within a federal detention facility. You can never be too careful with identity fraudsters, right?
By 5-4, the Supremes turned Iqbal away.
By 5-4, the Supremes turned Iqbal away.
Mr. Iqbal, Justice Kennedy wrote, failed to describe adequately how the actions of the two officials were connected to the mistreatment and discrimination he said he had suffered.
“It should come as no surprise,” Justice Kennedy wrote, “that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks should produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.”
That’s absolutely true, unless, of course, the only “suspected link to the attacks” happened to be the fact that they were Arabs of Muslims. In which case, it may not be such a legitimate a policy in the first place. But the issue before the Court wasn’t whether the policy was legit or not, as this case dealt with whether the case could proceed at its earliest stage, not who was wrong. Justice Souter, soon to be New Hampshire woodsman, dissented.
“Iqbal does not say merely that Ashcroft was the architect of some amorphous discrimination,” Justice Souter wrote, “or that Mueller was instrumental in some ill-defined constitutional violation; he alleges that they helped to create the discriminatory policy he has described.”
Justice Souter added that the majority had engaged in a sort of legal sleight of hand, ignoring a concession from the government that Mr. Ashcroft and Mr. Mueller would be liable were Mr. Iqbal able to prove that they had actually known of unconstitutional discrimination by subordinates and been deliberately indifferent to it.
The problem, between majority and dissent, is that it’s awfully hard to say with any degree of certainty what an important government official knows. It’s hard to say where a policy comes from, and how it goes down the line. There aren’t many press conferences out of the AGs office talking about how they’re going to toss all the Muslims they can find into solitary and do daily cavity searches.
But if you happen to be a cable TV guy from Long Island who happens to believe that the Koran is a better source of religious belief than the Torah, enjoying the daily cavity search which otherwise breaks the silence of 6 months in the hole, who do you look to for responsibility? It is imminently possible that Ashcroft and others had no clue that their departments were engaging in flagrant discrimination against Arabs and Muslims following 9/11. Okay, nobody really buys that, but I’m trying to be even handed. The point remains, how does anyone get to the bottom of anything involving an important government official?
From my seat, it’s our vision of “important government official” that stymies the effort. I am deeply sorry to say this, but no government official is “important” in the sense that their service to the public makes them more important than the people they serve. It’s conceptually wrong, yet reflects our quasi-rock star attitude toward anyone with a profile higher than Kathy Griffin. How did we ever allow our public servants, SERVANTS!, to become this big?
This is the place in this post where I would insert some of my favorite historic tales of how officials, who today are so distant from ordinary people, were once deemed no mightier than those they served. But Norm Pattis recently posted a story that I had never before heard, and so I offer instead.
But if you happen to be a cable TV guy from Long Island who happens to believe that the Koran is a better source of religious belief than the Torah, enjoying the daily cavity search which otherwise breaks the silence of 6 months in the hole, who do you look to for responsibility? It is imminently possible that Ashcroft and others had no clue that their departments were engaging in flagrant discrimination against Arabs and Muslims following 9/11. Okay, nobody really buys that, but I’m trying to be even handed. The point remains, how does anyone get to the bottom of anything involving an important government official?
From my seat, it’s our vision of “important government official” that stymies the effort. I am deeply sorry to say this, but no government official is “important” in the sense that their service to the public makes them more important than the people they serve. It’s conceptually wrong, yet reflects our quasi-rock star attitude toward anyone with a profile higher than Kathy Griffin. How did we ever allow our public servants, SERVANTS!, to become this big?
This is the place in this post where I would insert some of my favorite historic tales of how officials, who today are so distant from ordinary people, were once deemed no mightier than those they served. But Norm Pattis recently posted a story that I had never before heard, and so I offer instead.
[James] Wilson was appointed by George Washington along with five others on September 24, 1789. He was sworn in on October 5, 1789, thus becoming the first Justice on the Supreme Court.How cool is that? A Supreme Court Justice twice thrown into debtors prison, and then forced to hide in North Carolina. Maybe it’s time for our important government officials to remember their humble history. Maybe it’s time for citizens to remember that there should never be such a thing as an important government official in America.
Despite an ambition to serve as chief, he was passed over for the position thrice: in 1789, 1795 and again in 1796. “Increasingly during the 1790s Wilson became overextended in his investments and overwhelmed by financial distress. Twice he was jailed for debt. Eventually, to escape creditors he went into hiding in North Carolina.”
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You better be careful. You’re beginning to sound like a person the DHS might want to put on a potential domestic terrorist list, suggesting that government officials be thrown in prison and all.
Expecting government officials to be subject to the rule of law. Subversive!