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Supreme Court Rejects Discrimination Claim By Muslim For His Post- 9/11 Arrest

By Howard M. Friedman

Today in Ashcroft v. Iqbal, (Sup. Ct., May 18, 2009), the U.S. Supreme Court reversed the 2nd Circuit and rejected 1st and 5th Amendment Bivens claims brought by a Pakistani-Muslim who was arrested in the U.S. in the wake of the September 11 attacks. The complaint alleged that the former U.S. Attorney General and the former Director of the FBI subjected Iqbal to harsh conditions of confinement as a person of high interest because of his race, religion and national origin. In a 5-4 decision written by Justice Kennedy, the majority concluded that Iqbal's complaint failed to state sufficient facts to support a claim for purposeful discrimination:

Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose.... [T]o state a claim ... respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral,investigative reason but for the purpose of discriminating on account of race, religion, or national origin....

The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim?Osama bin Laden?and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts.

Justices Souter, Stevens, Breyer and Ginsburg dissented. SCOTUS Wiki has links to all the briefs that were filed in the case. The New York Times reports on today's decision. (See prior related posting.)

Full post as published by Religion Clause on May 18, 2009 (boomark / email).