Posted by: r.m. | May 20, 2009

US Supreme Court, Civil rights, Environmental rights… :-(

From the excellent environmental law blog:

The Washington Post reported [on May 18] on the Iqbal case alleging that former attorney general John Ash croft and FBI Director Robert Mueller knew that the prison guards holding Arab Muslims swept up after the September 11 attacks were torturing them because they were Arabs and/or Muslims.

The Supreme Court ruled today that former attorney general John Ashcroft and FBI Director Robert Mueller may not be sued by Arab Muslims who were seized in this country after the 2001 terrorist attacks and allege harsh treatment because of their religion and ethnicity.  The court ruled 5 to 4 that the top officials are not liable for the actions of their subordinates absent evidence that they ordered the allegedly discriminatory activity. The decision followed the court’s ideological split between conservatives and liberals, with Justice Anthony M. Kennedy siding with the conservatives and writing the opinion.

This case may not seem important from an environmental standpoint.  But I think it is. The United States has long been the biggest polluter in the United States.  We primarily depend on internal discipline and the prospect of federal criminal prosecution to prevent federal officials from feeling wholly immune from state and federal environmental laws. These remedies rely on the diligence of the federal government in self-policing itself and its officers to assure that the federal government does not injury citizens through pollution.  Citizen suits, judicial review actions, and state enforcement actions are directed at the government, but do not provide federal officers with personal exposure to penalties.  Federal officers also enjoy immunity from ordinary state tort actions, with the U.S. being substituted for the individual officer in such cases.  Thus, Bivens actions can be the remedy of last resort where federal officers endanger individual citizens through their misconduct.

The Iqbal decision prevents the use of supervisory liability ala Dotterweich and Park in the Bivens tort context.  Even if the supervisor is standing by and watching the misconduct of subordinates, the supervisor is not liable for the acts of those subordinates. This is an extremely dangerous incursion on federal supervisors being held responsible for the conduct they condone by their subordinates — when federal supervisors, knowing that their subordinates are systematically violate the constitutional rights of others, stand silence, they condone and tacitly consent to that conduct.  Iqbal is bad law and bad policy.

[end of quote from the Environmental Law Blog]

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