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Thursday, May 9, 2013

AFJ Scholarship: Ashcroft v. Iqbal and government officials’ legal accountability to victims of human rights abuses

By Peter Laumann
AFJ Dorot Fellow

Javaid Iqbal was one of hundreds of Muslim Americans rounded up – with no accusation or evidence of wrongdoing – as part of the Bush Administration’s response to the events of September 11, 2001. His case ultimately reached the Supreme Court, which by a 5-4 vote in Ashcroft v. Iqbal rewrote the rules of civil procedure and made it more difficult for all federal plaintiffs to have their claims heard in court.

This aspect of Iqbal has been widely examined and lambasted by civil procedure experts, who criticize the Court for sweeping away decades of pleading law and for improperly exceeding its authority in essentially reconstructing the Rules Enabling Act. The REA sets forth the procedural rules that apply to all litigation in federal court, and can only be changed through congressional legislation.

However, another aspect of the Iqbal ruling that has received less attention is the case’s implications for government officials’ accountability for human rights abuses and war crimes. My recently published article in the University of Pennsylvania Journal of Law and Social Change addresses this issue, which is particularly relevant in the aftermath of the Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum (AFJ’s response to the Kiobel decision is here.)

In my article, I argue that the Supreme Court majority’s opinion maintaining that supervisory liability does not apply in lawsuits against federal government officials alleging violations of federal constitutional or statutory rights is inconsistent with the United States’ obligations under binding human rights law, and any contrary language in Iqbal cannot have any force in such cases. Because Iqbal’s language cannot apply as broadly as it appears, I conclude:
The Supreme Court has decided, in very limited circumstances, to bar particular claims against federal officials for largely procedural reasons, such as the failure to adequately plead or a failure to overcome the qualified immunity requirement of a clearly established federal right. These barriers would not exist in the context of a clear human rights violation, such as obvious torture or impermissible detention. The regime of quasi-absolute human rights immunity for high-level government officials is the product of lower federal courts crafting new law beyond what the Supreme Court or statutory law had previously recognized.
Alliance for Justice has long advocated that government officials who have violated our constitutional and human rights obligations must be held accountable for their actions. Our documentaries Quiet Revolution  and Tortured Law explore the ways in which conservatives reshaped our legal system to deny justice to victims of civil and human rights abuses.

The article, Ashcroft v. Iqbal and Binding International Law: Command Responsibility in the Context of War Crimes and Human Rights Abuses, is available in Volume 16 of the University of Pennsylvania Journal of Law and Social Change, 16 U. Pa. J.L. & Soc. Change 181.

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