Ashcroft v. Iqbal and United States v. Husayn
Supreme Court’s two cases, Ashcroft v. Iqbal and United States v. Husayn has some uncanny similarities. Both Iqbal and Husayn are Muslims wanting to hold the United States responsible for the suffered brutal ill treatment, call it torture. They both blamed very senior people with the United States government for the atrocities committed on them and wanted justice. Both lost their claims owing to dubious interpretation of federal rules, Rule 8 and section 1782 of title 28. Why did the Court do that--solely to save these “senior people” from Embarrassment. Indeed, the minority (Justice Neil Gorsuch saw through this— “this Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.” Indeed, the Court’s majority suffered damage to their moral accountability. Not now, but in times to come, these two cases would fall into the same category as Dred Scott (denying freedom from slavery, 1857 which jurist Robert Bork called it as “the worst constitutional decision of the nineteenth century”)) and Bhagat Singh Thind (denying US citizen in 1923 for not being a pure Aryan). And that coming from the Supreme Court of the United States a champion of noble causes including—human freedom: “Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the degree of a personal monarch or of an impersonal multitude.” Hurtado v. California, 110 U.S. 516, 531 (1884). In that light Iqbal-Husayn deliberations are not an aberration, rather a deliberate attempt to protect executive heads, something which diminishes the prestige of Supreme Court and fall into Scott-Singh category. In Scott-Singh we saw a denial of substantive relief based on their race. In Iqbal-Hsayn, it is the procedural snub, however the impact remains same—shutting the door to substantive relief.
Iqbal Saga
(Ashcroft v. Iqbal, 556 U.S. 662 (2009))
Javed Iqbal (not the Pakistan Supreme Court justice Javed Iqbal Son of Allama Muhammad Iqbal), came to the United States in 1992 with a false passport. He worked at a gas station until his arrest on November 2, 2001. He was taken into custody and questioned about Osama bin Laden. Iqbal confessed that he was using a false identity to work in the U.S. He was arraigned in eastern district federal court in New York and indicted for identify fraud. He did not plead guilty. He was detained in the Metropolitan Detention Center, Brooklyn. He suffered brutal treatment at the hands of detention authorities, who called him a “Muslim Killer,” a “bastard”, a “terrorist” etc. In 2002, Iqbal did plead guilty to two charges brought by a superseding indictment, related to counterfeited securities and identification document fraud. Other charges were dismissed. He was sentenced to 16 months imprisonment and three years’ supervised release. Upon completion of his sentence, he was put in deportation proceeding, which he did not contest rather sought voluntary departure. Thus, after 15 months of detention, Iqbal was deported. The 15 months were real hell for him, where he was tortured. Iqbal through his lawyers filed a lawsuit for damages against federal officials and nineteen correctional officers asserting Bivens (constitutional) claims His complaint was dismissed and dismissal was affirmed by the Supreme Court.
The Supreme Court decided the issue if conclusory allegation against Attorney General Ashcroft and FBI Director Mueller regarding violence by subordinate official which they “knew of, condoned, or agreed to subject” pleaded a claim under Bivens and as well as other claims of discrimination. The Court denied any vicarious liability under Biven, stating that only “official’s own individual actions” would violate the constitution (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution”)
For the rest of complaint, the Court held that the statements were conclusory thus to be disregarded. Thus, Iqbal statement that the said high officials ‘knew of, condoned, and willfully and maliciously agreed to subject [Iqbal]’ to harsh conditions of confinement ‘as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest,’ were disregarded. Once these among others statements were found to be conclusory and not strong enough to push it “across the line from conceivable to plausible,” the Court did not find meat in rest of the averments and thus affirmed the dismissal of the complaint.
Husayn saga
United States v. Husayn, 142 S. Ct. 959, 987 (2022)
Husayn’s pain is on similar lines. Huyan whose full name is Zayn al-Abidin Muhammad Husayn, aka Abu Zubaydah, an Palestinian, alleged accomplice of Osama Bin Laden was taken into custody in 2002 in Pakistan, by the United States forces. He was in CIA custody for four years. During this custodial detention, he was taken to several countries and tortured (subjected to “enhanced interrogation”). One of the Countries that CIA allegedly took Husyan to was Poland. He claimed that he was brutally tortured during such enhanced interrogation (“During that time he was subjected to what the Government then called “enhanced interrogation” techniques, including waterboarding, stress positions, cramped confinement, and sleep deprivation”).
As the Supreme Court puts it: In 2010, lawyers representing Zubaydah filed a criminal complaint in Poland asking prosecutors there to hold accountable any Polish nationals who were involved in his alleged mistreatment in that country. Invoking a Mutual Legal Assistance Treaty, the Polish prosecutors asked American authorities for information. The United States Department of Justice refused their request on the ground that providing the information would adversely affect our national security. The Polish investigation closed without prosecutions. In 2015, the European Court of Human Rights considered the matter. It concluded that the CIA had held and tortured Zubaydah at a site located in Poland. It also stated that Poland had failed adequately to investigate the human rights violations that the court believed had occurred on Polish soil. In response, the Polish prosecutors reopened their investigation. They again requested information from the United States under the Mutual Legal Assistance Treaty, and the United States again denied their requests. At that point, the Polish prosecutors invited Zubaydah's lawyers to submit evidence that would aid their investigation. Soon afterward, Zubaydah (and his lawyer) filed the ex parte 28 U.S.C. § 1782 discovery application.
Under section 1782 of Title 28, a party is authorized to move the court to compel production of discovery which could be used in a foreign proceeding. Husyan was specifically requesting discovery from the former CIA contractor psychologists involved in developing enhanced interrogation program, which included violence against the detainees and other abuses. Hysayin insisted that the CIA contractors had information about torture chambers operating in Poland and of those who are supervising such unlawful acts. Mike Pompeo the CIA director asserted state secretes privilege. The district court denied the application, the ninth circuit on appeal reverse the same. The government moved the Supreme Court arguing that the Ninth Circuit decision imperils national security. The government invoked “deference to national-security interests.” The queer aspect of the case was the most of the information was sought was already in public domain and Husyan wanted a confirmation of the same, i.e. “of the existence of a CIA facility in Poland.” In 2014, a Select Committee of the United States Senate published a 683-page report about the CIA's detention and interrogation practices. The report did not focus on Zubaydah alone, but it included certain details about his treatment.” So the facts were already made public. Yet the Supreme Court held “sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege.”
Iqbal-Husyan predicament did not entail any immunity issue, both had right to what they were looking for and it was deflected with a horrible cost. Iqbal doctrine has brought considerable loss to pleaders and definitely result in denial of access to the courts. And Husyan is a green light for oversees torture by the CIA or other authorities without any accountability. No foreign country would say No to the United States.