Federal Judiciary

Terror by Lawsuit -- By: NRO Staff

Alleged Times Square bomber Faisal Shahzad was presented to a judge this past Tuesday, after being held in custody, incommunicado from everyone except his interrogators, for two weeks. According to reports, the interrogators included federal prosecutors and agents from Manhattan, as well as members of the president?s newly minted High-Value Detainee Interrogation Group (HIG).

Infamously, the HIG was not deployed by the Obama administration to question underwear bomber Umar Farouk Abdulmutallab back in December -- because (unbeknownst to the recently resigned director of national intelligence Dennis Blair) it did not actually exist yet, even though it had been announced with fanfare late last summer.

This time, the administration sprang into action much more spryly, taking its lead from Preet Bharara, the U.S. Attorney for Manhattan, and others in law enforcement who prioritize public safety over safely covering their butts. Shahzad?s two weeks in custody without appearing before a judge is almost unprecedented and reflects the interrogators? determination to get intelligence about other plots and prevent future attacks. Had the prosecutors followed the usual criminal-justice playbook, Shahzad would have been presented to a judge and given a lawyer as soon as possible after arrest, or at most 24 or 48 hours after arrest -- even though he waived his rights to appear before a judge and have a lawyer. Instead, the prosecutors accepted Shahzad?s waivers so that his interrogation would not be disrupted, informing a judge during the interrogation that ?uninterrupted access [to Shahzad] has been, and continues to be, extremely beneficial, if not essential, to the investigation.?

The interrogation has produced results, including raids of possible co-conspirators, search warrants, and overseas arrests of Shahzad?s bomb trainers, and it has made us safer. As we wrote last week, the prosecutors handling Shahzad deserve our praise and gratitude for taking the risk of a judge?s rebuke to gain knowledge about Shahzad?s co-conspirators.

But there remains the chance that a court might suppress Shahzad?s statements so they cannot be used against him at trial. The court might decide, essentially, that Shahzad?s two weeks in custody without appearing before a judge or getting a lawyer were so inherently coercive that his waivers should not be accepted as ?knowing and voluntary.?

In addition, the prosecutors themselves, and even high-level officials in Washington, could personally face lawsuits from Shahzad if a bill sponsored by Sen. Arlen Specter in the Senate or a similar one by Rep. Jerrold Nadler in the House becomes law. Congressman Nadler?s bill will be considered by the House Judiciary Committee as early as next week and could hit the floor not long thereafter.

These bills would overturn the Supreme Court?s 2009 ruling in Ashcroft v. Iqbal, and also its 2007 decision in Bell Atlantic Corp. v. Twombly. In these cases, the Court announced that in federal civil lawsuits, the plaintiff?s case may not go forward unless he presents facts and legal arguments that are plausible. And that the judge should use his or her judicial experience and common sense to help decide the facts? and arguments? plausibility. That?s it.

Senator Specter and Congressman Nadler want judges to be prohibited from throwing out any case unless, as Nadler?s bill spells out, ?it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief.? Just in case any judge might dare to ask whether a claim is plausible, the bill would put a quick stop to that: ?A court shall not dismiss a complaint#...#on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff?s claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.? These bills would radically redefine well-settled law and lower the bar for lawsuits. No wonder the bills are opposed by the United States Judicial Conference, the principal policymaking body for the administration of the federal courts, and even Democrats such as Congressman Rick Boucher of Virginia.

Why does this standard matter to the prosecutors and other officials investigating Shahzad? Look no farther than the Ashcroft v. Iqbal decision that Senator Specter and Congressman Nadler want to eviscerate. The plaintiff, Javaid Iqbal, was a Pakistani citizen and Muslim picked up in the large-scale FBI sweeps of illegal immigrants and other immigrants of interest in the tense months immediately following 9/11. Iqbal was arrested on criminal charges of identification fraud but detained as a person of high interest because of his suspected ties to terrorism. He was held under restrictive conditions, including 23-hour lockdown (he spent the remaining hour each day outside his cell, but in handcuffs and leg irons). Eventually, Iqbal pleaded guilty to the identification-fraud charges, served time in prison, and was deported to Pakistan.

From Pakistan, Iqbal filed a lawsuit against the federal officials and corrections officers who, he believed, were responsible for his detention as a person of high interest. Iqbal alleged that he was abused by guards, and that high-level law-enforcement officials such as former attorney general John Ashcroft and FBI director Robert Mueller had ordered him detained not because they thought he might be a terrorist, but because of his race, religion, or national origin, in violation of his constitutional rights. In other words, his only ?sin? was being a Muslim from Pakistan.

The lower courts permitted Iqbal?s lawsuit against Ashcroft and Mueller to go forward. The first court applied the same standard that Senator Specter and Congressman Nadler vouch for: ?It cannot be said that there [is] no set of facts on which [Iqbal] would be entitled to relief as against [Ashcroft and Mueller].? The appellate court modified this a bit but nonetheless found that the case should go forward because this was not a context in which an assessment of ?plausibility? was needed.

The Supreme Court reversed the lower courts, dismissing the case. In his majority opinion, Justice Kennedy explicitly and repeatedly relied on the plausibility standard -- and found it implausible that Ashcroft and Mueller had been driven by anti-Muslim animus to order the sweeps that picked up Iqbal. He concluded, along with four of his fellow justices, that it was far more plausible that Ashcroft and Mueller were motivated by their goal of finding other terrorists and stopping future attacks. ?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 [9/11] attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.? The Justice found no more convincing Iqbal?s assertion that he was subjected to 23-hour lockdowns and other restrictions because he was Muslim: ?The complaint does not show, or even intimate, that [Ashcroft and Mueller] purposefully housed detainees in [restrictive conditions] due to their race, religion, or national origin. All it plausibly suggests is that the Nation?s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.?

The Supreme Court?s decision in Ashcroft v. Iqbal should comfort the officials, prosecutors, and law-enforcement officers who held Shahzad for two weeks without bringing him before a judge. Now that Shahzad has a lawyer, he may come after them for allegedly violating his rights. He could even make claims similar to Iqbal?s -- for example, that the prosecutors took the extraordinary step of detaining him for two weeks without presentment or a lawyer because of his religion, race, or national origin (he is a naturalized U.S. citizen of Pakistani origin).

Such a claim sounds implausible, of course. But the perversity of the bills sponsored by Senator Specter and Congressman Nadler is that plausibility would not matter in the slightest. Can it be said there is no set of facts that could support Shahzad?s claim, the pleading standard they insist on? Like the lower courts in Ashcroft v. Iqbal who allowed Iqbal?s case against Ashcroft and Mueller to go forward before the Supreme Court intervened, a federal judge in Manhattan might conclude that Shahzad?s claim -- no matter how implausible -- is not impossible.

It is bad for law enforcement and worse for national security to have prosecutors, agents, police officers, and policymakers constantly looking over their shoulders, and to worry that they will be sued on the flimsiest of grounds. Permitting implausible but not impossible lawsuits to go forward, as Senator Specter and Congressman Nadler propose, will have the effect of making the people entrusted with protecting us more risk-averse and less creative in doing their jobs. As Justice Kennedy put it, our officials ?must be neither deterred nor distracted from the vigorous performance of their duties? by baseless lawsuits.

Would we be better off if the prosecutors and agents in Manhattan had played it safe and presented Shahzad to a court within hours of his arrest and given him a lawyer? We know the prosecutors? answer. According to their letter [PDF] to the judge in Manhattan, they feared that interrupting the interrogation in this manner could have compromised their investigation of other plots or attacks Shahzad knew about.

To be fair, Senator Specter and Congressman Nadler are not driven by a desire to deter or distract our national security and law enforcement professionals. Rather, their bills do the bidding of plaintiffs? lawyers, big campaign contributors who are eager to see pleading standards lowered across the board so they can more easily sue corporations and other entities with deep pockets. But the unintended consequences would extend beyond dollars and cents, and our nation could end up paying a far higher price.

-- Bill Burck is a former federal prosecutor and deputy counsel to Pres. George W. Bush. Dana Perino is former press secretary to President Bush. Mr. Burck and Ms. Perino are consultants to the U.S. Chamber Institute for Legal Reform.

Full post as published by Bench Memos - National Review Online on May 21, 2010 (boomark / email).