Yet Another Reason Why Congress Failed Last Week

The New York Times and other newspapers this morning offer mind-blowing detail about a federal appeals court hearing yesterday held to determine whether high- and mid-ranking government officials should receive immunity for their treatment of a Pakistani man named Javaid Iqbal who was swept up in an early terrorism raid shortly after 9/11. Among the defendants in the civil action are the former U.S. Attorney General John Ashcroft, Dennis Hasty, the former warden of the Metropolitan Detention Center in New York where Iqbal was held, and several FBI officials responsible for fingering men like Iqbal in the first place.

Here is a passage from Nina Bernstein's piece in the Times: "Mr. Hasty's lawyer, Michael L. Martinez, had argued in his brief that even if everything alleged in the lawsuit were true -- as the appellate judges must assume at this stage of the litigation -- Mr. Iqbal's treatment 'never approached the level of a due process violation.' 'Beatings?' [2nd U.S. Circuit Court of Appeals Judge Jon A.] Newman asked. 'Exposure to air-conditioning after standing in the rain? Needless strip-searches? Never approached a due process violation? If I thought your client really believed that, I've got to tell you, I'd be really troubled.'

More from Bernstein: "Earlier, Judge Newman interrupted Lauren Resnick, the lawyer representing two former officials of the F.B.I., Michael Rolince, the agency's former chief of counterterrorism, and Kenneth Maxwell, a former special agent in charge of the F.B.I. office in New York, as she argued that the complaint was not specific enough in linking the F.B.I. supervisors to what another federal bureaucracy was doing in the detention center. 'You don't think your clients had a major role in the decision not to release these plaintiffs?' Judge Newman asked. He was referring to findings by the Inspector General that detainees picked up on called-in tips were often designated "high-interest" and held in highly restrictive conditions until the F.B.I. cleared them, a process that took months because it was not a high priority. 'Are you telling me that they were unaware that they were being held in highly restrictive conditions?' Instead of answering, Ms. Resnick kept repeating the legal position that the complaint itself was deficient in the way it made its accusations."

This is the factual record upon which the Administration went to Congress this past summer and asked for less judicial and legislative oversight in the legal war on terror. It is in this context that the Congress passed a measure last week that would preclude resident aliens from contesting their detention in federal court. It is this kind of conduct by government officials that the White House wants to protect more fully.

By Andrew Cohen |  October 5, 2006; 8:00 AM ET
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