9-11 Civil Rights Case Deep Sixed

Ashcroft v. Iqbal is that a civil rights case alleging that former Attorney General John Ashcroft and others in the Bush Administration violated an Arab-American's civil rights in connection with an extraordinary rendition. The 5-4 decision of the U.S. Supreme Court decision (with conservatives in the majority) holding that the suit fails is hardly surprising. There are a wide array of governmental defenses to these actions.

But, the ground in this case for the dismissal are particularly broad. Basically, the case was dismissed on the grounds that the factual allegations about the intent of the officials involved was conclusory, rather than specific.

In this situation, as in the recent anti-trust case that revolutionized pleading in civil cases, the justices are requiring that plaintiffs have the goods in insider discussions necessary to establish liability that plaintiffs and the public don't ordinarily have access to, even before filing suit and engaging in formal discovery and depositions that could more specifically prove bad intent. This will make bringing civil rights suits and other suits involving managerial wrong doing in private enterprises much more difficult without a whistleblower.

The dissent by Justice Souter also notes that the majority reaches out to narrow the substantive standard for supervisory liability in civil rights cases, an issue which was not before the court and was not briefed. This could impact almost every civil rights case involving supervisory liability.