Unintended Precedents: How a Supreme Court Decision about Terrorism Detainees Has Had Serious Consequences for Corporate and Government Accountability

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Javaid Iqbal lived for a decade on Long Island, working first as a 7-Eleven clerk, then as a gas station attendant, then as a cable-television installer. On Nov. 2, 2001, the Pakistani immigrant was arrested in his apartment by FBI agents acting on one of the many misleading tips that poured in after the September 11 attacks. He was taken to Brooklyn's Metropolitan Detention Center without any notification to his American wife or stepchildren. Two months after his arrest, he was moved to the jail's Administrative Maximum (ADMAX) unit, where he alleges he was beaten repeatedly and kept in solitary confinement under bright lights that shone 24 hours a day. He was forced outside on cold, rainy days and then left soaking in his jail cell while guards cranked up the air conditioner. He lost 40 pounds during his 14 months in detention and was deported in 2003.

The following year, he filed a lawsuit against dozens of U.S. officials, claiming he was declared a "high interest" detainee and placed in ADMAX because of his race, religion, and national origin. Iqbal's lawyers sought to question former Attorney General John Ashcroft and FBI Director Robert Mueller under oath about their responsibility for the jailing and abuse of detainees in the Brooklyn detention center. But by a 5-4 vote last May, the Supreme Court's conservative majority rejected the request, quashing a lawsuit that had spent five years climbing through the lower courts. The justices ruled that Iqbal's lawyers had not made a plausible case that Ashcroft or Mueller was responsible for Iqbal's mistreatment and barred the lawyers from asking the government to turn over evidence to which only it had access. In doing so, the court used Ashcroft v. Iqbal to rewrite more than a half-century of precedent establishing the hurdles plaintiffs must cross before they can begin discovery--the pre-trial process that requires defendants to hand over internal documents, answer questions under oath, and provide other evidence.

The opinion was so broad that it has become a formidable weapon for corporations and other defendants trying to shield themselves against everything from employment discrimination to product-liability lawsuits. Since the ruling, dozens of eases that might have once proceeded have been thrown out because they don't meet the Iqbal test.

"It has shifted from a situation where you used to be able to allege facts that you knew, but where you still had to gather the details through discovery," says Terry Collingsworth, a lawyer with Conrad and Scherer in Washington, D.C., and executive director of International Rights Advocates. "Now you pretty much have to have all the evidence before you even file a ease. As a result, we are going to see many corporate-accountability eases that are simply not pursued." Collingsworth is leading a case brought by trade unionists in Colombia against Coca-Cola for allegedly conspiring with paramilitaries to imprison and kill union leaders trying to organize at the company's bottling plants there. An appeals court in Florida last year threw out the case for failing to surmount the Iqbal threshold; the unionists are planning to appeal.

In the five months after the decision, the Iqbal opinion was cited by lower-court judges in more than 2,600 eases. Supporters have hailed it as a long-overdue correction to an overly liberal standard that had forced corporations and other big defendants to spend millions of dollars digging up internal e-mails and other documents to meet discovery requests in meritless lawsuits. Detractors charge that it threatens to undermine the foundations of U.S. civil-rights and regulatory laws, which have relied on private civil litigation as their primary means of enforcement. Either way, less than a year after the ruling, Ashcroft v. Iqbal looks like one of the most radical and consequential decisions yet issued by the Supreme Court under Chief Justice John Roberts.

In many countries, governments play a more aggressive role in seeking out violations and enforcing statutes. …