Just about every American law graduate is familiar with the concept of optimal enforcement. An idea drawn from law and economics, enforcement is said to be optimal when the regulatory body or agency charged with enforcing a law does not spend more than it should to enforce that law. Put in more technical jargon, each resource unit devoted to enforcement of a law produces the best possible enforcement impact (however that impact is defined and measured). Another thing that most American law graduates understand, and understand quite intuitively, is that optimal enforcement is impossible unless the party responsible for illicit conduct faces penalties for breaching the law.

If law graduates comprehend this economic concept so readily, can the same be said for all of the Justices that sit on the highest court of the land? Unfortunately, no. In a recent argument before the Supreme Court, some of the Justices suggested that the parties most likely to be responsible for (alleged) illegal conduct might enjoy immunity from prosecution if they are too busy or if they engaged in the misconduct in the hopes of addressing pressing national security concerns.

The case before the Court involves Javaid Iqbal, a cable installer that the U.S. government apprehended in the wake of the 9/11 attacks. Like many of the thousands of Muslim and Arab men arrested by the FBI after 9/11, Iqbal was never charged with terrorism or any related crime. He was detained at the Metropolitan Detention Center in Brooklyn for about 150 days, during which Iqbal claims he was brutally beaten, denied urgent medical care, and subject to invasive cavity searches and blinding light. After confessing to unrelated immigration charges, Iqbal was sent back to Pakistan in 2003, and that’s when he decided to sue 34 U.S. government officials, including John Ashcroft and Robert Mueller.

Iqbal alleged 21 distinct violations of his statutory and constitutional rights, including a claim that his detention and treatment breached due process. The defendants, including the Department of Justice, the Bureau of Prisons, the FBI, Ashcroft and Mueller, moved to dismiss the charges based on the doctrine of qualified immunity. Initially, the District Court for the Eastern District of New York denied that motion and rejected the qualified immunity defense. The Second Circuit Court of Appeals affirmed the district court on all grounds save one (the due process violation), holding that qualified immunity is no barrier to prosecuting high level government officials where “serious allegations of gross mistreatment” are at play. However, the Second Circuit made it very plain that the district court, when handling the remand, could complete the discovery process against all low-level government officials before allowing discovery of information relating to high-level officials like Ashcroft and Mueller to go forward.

Unhappy with this result, Ashcroft and Mueller asked the Supreme Court to step in to determine whether constitutional claims against high-ranking public officials should be heard at all by the courts. Solicitor General Gregory Garre – a very talented litigator representing the government – insisted during oral argument that high-ranking officials are entitled to qualified immunity and thus the case against Ashcroft and Mueller can’t possibly go ahead. These high-flyin’ folks are untouchables, Garre seems to say. And what’s more, according to Garre, Iqbal hasn’t clearly explained (or “pled” in legal jargon) precisely how he believes Ashcroft and Mueller were involved in torturing him. Iqbal has presented no torture orders to any court, and without some kind of tangible evidence that low-level prison officials were acting on orders from on high, shouldn’t we just dismiss Iqbal’s claim? Garre’s message to the Court is essentially this: “My clients are immune from suit, and even if they aren’t immune, this case should be dismissed now because Iqbal hasn’t already proven that my clients committed the crime.” Chief Justice John Roberts was receptive to this entreaty, suggesting at oral argument that Iqbal’s complaint should be examined by the Court with “greater rigor,” which if taken seriously by the rest of the Court could lead to special pleading standards for cases against high-level government officials.

Advocates will do what advocates must do, which is another way of saying that Garre hasn’t accurately represented the law. So what does the law require? First, with respect to pleading standards, generally where a lawsuit makes out, in relatively clear terms, an alleged causal link between the underlying offense and the defendant’s conduct, that’s sufficient to allow the case to go forward. Garre thinks this is a special case, and argues that Iqbal must allege specific “nonconclusory” facts linking Ashcroft and Mueller to individual acts of torture perpetrated against Iqbal. It is not enough, Garre opines, for Iqbal’s lawyers to say that Ashcroft and Mueller designed the scheme under which Iqbal was allegedly tortured. There are two glaring holes in this argument:

(1) The Federal Rules of Evidence (FRE) simply do not support the government’s position. Although a relatively new case called Twombly (which requires that a pleading set out an allegation that is plausible rather than merely possible), pleading standards in federal court do not require every single micro-event to be explained in a complaint. For cases involving fraud, pleading with “particularity” is required under Rule 9 of the FRE when Congress explicitly says so. But in all other cases, as long as a plaintiff explains the defendant’s general role in the alleged misconduct, that is enough to have the case heard. After all, if pleadings were required to have enough information to determine the truth of a plaintiff’s claims, there would be no need for full-blown trials.

(2) The FRE should not be modified by the Court to impose special pleading burdens in qualified immunity cases like Iqbal’s. Discovery will be necessary to show the causal linkages between Iqbal’s torture and maltreatment, on the one hand, and Ashcroft and Mueller’s directives, on the other. It is simply bizarre to think that higher pleading standards would make sense in this case, since Iqbal would certainly be unable to uncover all of the relevant evidence against Ashcroft and Mueller without being afforded discovery.

Some members of the Court, of course, don’t see things this way. Justice Scalia cynically suggested that Iqbal shouldn’t be heard because this would be tantamount to allowing “mere” federal district court judges to second guess the decisions of Ashcroft and Mueller. Justice Alito, eager not to be outshone by his colleague in expressing contempt for Iqbal’s constitutional claims, poked fun at the district court’s understanding of the proper limits of discovery. Alito even said – and I wish I were kidding here – that Ashcroft and Mueller were the ones in need of protection from overly zealous district court judges.

Second, with respect to qualified immunity, Garre is trying to stretch the doctrine past the breaking point. The government’s position is that Ashcroft and Mueller enjoy qualified immunity because they only crafted high-level policies which were later, without their knowledge or consent, misinterpreted by low-level lackeys. (Recall the “bad apples” theory? Abu Ghraib should come to mind instantly.) Again, what does the law actually say? Under a Supreme Court case called Bivens, individuals such as Iqbal enjoy a private right of action against governmental employees where they supervise or knowingly acquiesce in the illegal conduct of their subordinates. Thus, if Iqbal can show during trial that Ashcroft and Mueller supervised or knowingly acquiesced in the illicit conduct of the individuals who tortured Iqbal, qualified immunity effectively evaporates. And there’s good reason to think that Iqbal’s lawyers will rise to the occasion to show just that. The government’s brief before the Second Circuit explicitly admits that Ashcroft and Mueller “adopted and implemented a policy and practice of imposing harsher conditions of confinement on plaintiffs because of their religious beliefs and race.” And that, dear friends, is precisely the conduct at the heart of Iqbal’s legal grievance against these folks.

The cynical jurisprudence espoused by the Supreme Court’s naysayers – by Roberts, Scalia and Alito – is especially problematic in light of the avalanche of data made available by the government and the media about the prevalence of torture in the various facilities established to house 9/11 detainees. For example, a report published by the Inspector General’s Office in 2003 explicitly blames government officials for torture and maltreatment. Data like this strongly suggests that it might not be so hard for Iqbal to show that the big boys in the Bush Administration sanctioned the torture he endured in Brooklyn. Yet despite the 2003 report and the chilling allegations in Iqbal’s complaint, Roberts, Alito and Scalia exhibit unfettered hostility to the notion that the facts should speak for themselves in a civilian forum. Think about this carefully. Vocal, influential members of our Supreme Court want to make it harder to enforce our anti-torture laws. Which brings us right back to where we started, the economics of justice. After filtering out all the noise produced by the lawyers and some Supreme Court Justices, a single question remains: Do we care about enforcing laws against torture? If we do care, that is, if we do want to effectively enforce these laws, we must allow the alleged architects of torture to stand trial for what they (may) have done. That’s simple economics, something an ordinary law graduate can get. Now why can’t the entire Court?

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