There is an old military adage that there are "different spanks for different ranks."
It appears that the 5-4 Supreme Court majority in Ashcroft v. Iqbal, decided Monday, went out of its way to suggest that the adage also applies to so-called Bivens claims - civil constitutional claims for mistreatment by allegedly lawless public servants (Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)). Those of us who seek the criminal prosecution of high-level US civilians or military generals for torture and cruel, inhumane, or degrading treatment can only hope that another slim majority of the court does not go down the same path in criminal prosecutions under the Federal Criminal Code or the Uniform Code of Military Justice. The effect of that would be to say that the uniformed soldiers who did the bidding of the high-level civilians and military generals may be court-martialed, serve time, and be dishonorably discharged, but that the high-level civilians who orchestrated such crimes are somehow above the law.
In the months following 9/11, Javaid Iqbal was arrested on criminal charges and detained by federal officials under restrictive conditions at the Metropolitan Detention Center in Brooklyn, New York in the Administrative Maximum Special Housing Unit (ADMAX SHU), which was deplored by the Inspector General in a 2003 Department of Justice report. Iqbal pleaded guilty to various criminal charges relating to false documentation (but not to any terrorism charges), served time, and was ultimately deported to his home in Pakistan. During the pendency of this, Iqbal filed a Bivens claim against several federal officials including former Attorney General John Ashcroft and current Director of the Federal Bureau of Investigation Robert Mueller. He alleged that they had designated Iqbal a person "of high interest" on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments. He also alleged that the FBI, under Mueller's direction, arrested and detained thousands of Arab Muslim men as part of its September 11th investigation. Furthermore, he alleged that Ashcroft, Mueller, and others knowingly, willfully and maliciously agreed to subject Iqbal to harsh conditions of confinement as a matter of policy, solely on account of the factors prohibited by the first and fifth amendments and without asserting any legitimate penalogical interest. Finally, he alleged that Ashcroft was the policy's "principal architect" and Mueller was "instrumental" in its adoption and execution.
The federal officials asserted "qualified immunity", which was rejected by the District Court. The officials then appealed, asserting the collateral order doctrine. The Second Circuit affirmed, concluding that Twombly's "flexible plausibility standard", which obligates a pleader to amplify a claim with factual allegations where necessary to render it plausible, was inapplicable in the context of petitioners' appeal. The Second Circuit held that Iqbal's complaint was adequate to allege petitioners' personal involvement in discriminatory decisions which, if true, violated clearly established constitutional law.
Justice Kennedy, writing for the majority (Roberts, Alito, Thomas, and Scalia) stated that Iqbal's account of his prison ordeal could, if proven, demonstrate unconstitutional misconduct by some governmental actors. But the majority went on to state that the allegations and pleadings with respect to these actors were not before the Court today. Rather, the majority viewed that the case as turning on a narrower question: did Iqbal, as the plaintiff in the District Court, plead factual matter that, if taken as true, states a claim that Ashcroft and Mueller and others deprived him of his clearly established constitutional rights? The majority held that respondent's pleadings are insufficient.
To get there, the Court first determined the Second Circuit had subject matter jurisdiction because the District Court decision denying a Government officer's claim of qualified immunity can fall within the narrow class of appealable orders despite "the absence of a final judgment " (Mitchell v. Forsyth, 472 U. S. 511, 530 (1985)). This was said to be so because qualified immunity â which shields Government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights," (Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)) â is both a defense to liability and a limited "entitlement not to stand trial or face the other burdens of litigation" ( Mitchell, supra, 472 U. S., at 526). Provided it "turns on an issue of law," id., at 530, a district-court order denying qualified immunity "'conclusively determine[s]'" that the defendant must bear the burdens of discovery is "conceptually distinct from the merits of the plaintiff's claim" and would prove "effectively unreviewable on appeal from a final judgment."
Turning to the Bivens claim, the majority noted that in the limited settings where Bivens does apply, the implied cause of action is the "federal analog to suits brought against state officials under Revised Statute Â§1979, 42 U. S. C. Â§1983" (Hartman v. Moore, 547 U. S., at 254, n. 2. Cf. Wilson v. Layne, 526 U. S. 603, 609 (1999)). Based on the rules established by precedent, Iqbal correctly conceded that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior (Iqbal Brief 46 ("[I]t is undisputed that supervisory Bivens liability cannot be established solely on a theory of respondeat superior"). See Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691 (1978) (finding no vicarious liability for a municipal "person" under 42 U. S. C. Â§1983); see also Dunlop v. Munroe, 7 Cranch 242, 269 (1812) (a federal official's liability "will only result from his own neglect in not properly superintending the discharge" of his subordinates' duties); Robertson v. Sichel, 127 U. S. 507, 515516 (1888) ("A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties").) Because vicarious liability is inapplicable to Bivens and Â§1983 suits, the majority stated that a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.
The key to the majority's thinking is in a passage which states:
[Iqbal] argues that, under a theory of "supervisory liability," petitioners can be liable for "knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees." Iqbal Brief 4546. That is to say,respondent believes a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution. We reject this argument. Respondent's conception of "supervisory liability" is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a Â§1983 suit or a Bivens actionâwhere masters do not answer for the torts of their servantsâthe term "supervisory liability" is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.Having rejected the presentation of "supervisory liability" of Iqbal, the majority analyzed Iqbal's complaint under the two-pronged Twombly test and stated that:
Under Twombly's construction of Rule 8 of the Federal Rules of Civil Procedure, we conclude that respondent's complaint has not "nudged [his] claims" of invidious discrimination across the line from conceivable to plausible.Justice Souter in his dissent joined by Breyer, Ginsburg and Stevens stated:
According to the majority, because Iqbal concededly cannot recover on a theory of respondeat superior, it follows that he cannot recover under any theory of supervisory liability... The majority says that in a Bivens action, "where masters do not answer for the torts of their servants... the term 'supervisory liability' is a misnomer," and that "[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Ibid. Lest there be any mistake, in these words the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely. The nature of a supervisory liability theory is that the supervisor may be liable, under certain conditions, for the wrongdoing of his subordinates, and it is this very principle that the majority rejects.In this sense, on remand, some lower level governmental officials may be liable to Iqbal for his treatment (different spank) but not Ashcroft and Mueller who were their bosses (different rank).
The majority appears to be sending a signal to the courts below that it seeks to limit "supervisory liability" (at least in Bivens-type cases), thus protecting higher-up officials from facing personal liability for actions done with their approval by their subordinates. If this view of higher-up responsibility were to leach over to the criminal and military law settings in the lower courts and military court-martials, the effect is clear: lower level uniformed and non-uniformed persons may be criminally prosecuted or court-martialed while the higher-ups who set the policy get off scot-free.
Truly different spanks for different ranks. More prosaically, the Supreme Court seems to be suggesting that the other military adage "shit rolls down hill" is going to be applied also in this arena.
The one saving grace for this situation is that the relevant federal criminal statutes and Uniform Code of Military Justice, by their terms, may provide a broader space for higher-up liability than does the Bivens constitutional action. However, it is possible that those low-level persons below who argue that they tortured within the "scope of employment" may continue to be unsuccessful in avoiding conviction while those arguing they "only set policy" on the torture may be found to be able to successfully assert what can only be a constitutional protection.
The problem lies in the power of the higher-ups in their positions to blur the distinctions in a manner that the lower level person is not capable of blurring. The key issue would be whether the statutory and constitutional framework is clear. If the framework is not clear, the higher-ups are more likely to be able to seek protection. It is in this kind of view that we can understand the purposes of the torture memos even better. These memos were an effort to seek to completely blur the statutory and constitutional framework not only to permit torture but, in a kind of double whammy, to also provide a constitutional defense to those at the top who organized the torture. Such high-level civilians or generals would seek to argue that the statutory and constitutional framework was not "clear enough" for them to be guilty.
When we get to the stage of criminal prosecution of these high-level civilians and generals for torture and cruel, inhumane, and degrading treatment, we shouldn't tolerate this line of argument even if the Supreme Court is so willing to turn a blind eye to lawlessness at the instigation of high-level civilians. The point must be made in any case how clear and limpid the law is in the relevant statutes on the basis of which these individuals are being charged to deter the "I didn't know." kind of argument. Ironically, the use of false narrative and shoddy legal analysis in the torture memos may in fact help such prosecution because of the improbable nature of the analysis and conclusions in those memos and most importantly the contemporaneous severe criticism of these analyses by other lawyers privy in the former Administration. In this regard, the efforts of the military Judge Advocate Generals, Alberto Mora, other lawyers in the Department of Justice who dissented, Phillip Zelikow and William Taft at State, were all truly noble efforts to ensure that the rule of law is preserved in a time of lawlessness. The attempts to stifle these lawyers' dissents should be part of any evaluation of high-level claims of innocence.
Beyond a reasonable doubt, I do not buy the "different spanks for different ranks" approach. It is an attempt to enshrine a misfeasance/malfeasance distinction based on rank that may have served high-level persons on other occasions, but should not prevail in the face of both statutory and treaty obligations on torture and cruel, inhumane, and degrading treatment. The international law for dereliction of duty holds a leader liable for his own wrongdoing or fault because the leader is expected to take reasonable corrective action upon learning (or, where viewed objectively, the leader should have learned) of wrongdoing by subordinates. According to the international legal standard, the leader's wrongdoing need not be purposeful, as the Court held Monday; it is enough if the leader knows or should have known that subordinates are doing wrong and the leader takes no reasonable corrective action. We add the "should have known" criminal negligence type liability so that the leader is not able to point to his or her own dereliction in failing to become informed as an excuse and the leader must try to keep informed (thanks to Professor Jordan Paust for assistance on these points of leader liability).
In asserting the concept of refluat stercus in a recent article, I attempted to broaden our thinking beyond strict command responsibility or respondeat superior to capture the broader set of possibilities in domestic law in order to vindicate the international legal obligations we have with regard to torture and cruel, inhumane, and degrading treatment. The Supreme Court majority's effort attempts to try to narrow, in advance of criminal cases, the playing field for decision making. I will have none of that. Our courts should make sure that we do not allow persons we have entrusted with public official status to use the levers of that protected status or agency law to protect themselves in that public structure from criminal liability for their actions. My colleague has written precisely to this point in an earlier JURIST op-ed.
We will see whether, in a future proceeding before the Supreme Court, Chief Justice Roberts and those in the majority will seek to make "context" arguments on the serious international crime of torture to try to absolve high-level civilians or military generals of criminal liability for their acts in orchestrating the policy of torture for which some of the lower-level persons who did their bidding have been convicted. For now, we should look at Ashcroft v. Iqbal as a warning to Americans that our Supreme Court may be trying to set up "different spanks for different ranks." We fought a revolution to end that kind of privilege of class. Maybe the originalists need to go back and read Thomas Paine and others to remember that no one is above the law.
Benjamin Davis is a professor at the University of Toledo College of Law