High Court Sides With Ashcroft, Mueller in 9/11 Detainee Abuse Case

http://www.supremecourtus.gov/opinions/08pdf/07-1015.pdf

Important on many parts but particularly on Bivens and Respondeat Superior. See this part of Souter’s dissent:

“According to the majority, because Iqbal concededly cannot recover on a theory of respondeat superior, it follows that he cannot recover under any theory of supervisory liability. Ante, at 13. The majority says that in a Bivens action, “where masters do not answer for the torts of their servants,” “the term ‘supervisory liability’ is a misnomer,” and that “[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Ibid. Lest there be any mistake, in these words the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely. The nature of a supervisory liability theory is that the supervisor may be liable, under certain conditions, for the wrongdoing of his subordinates, and it is this very principle that the majority rejects.”

This language might be sought to be used in criminal prosecutions of high-level civilians and/or military generals for torture and cruel, inhuman or degrading treatment to argue the high-level persons were “OK” in the “scope of their employment” and their link to the actual acts in the field is too tenuous. Of course, the evidence of persons like Cheney being intimately involved with the minutiae as well as the National Security Principals authorizations of specific techniques of torture may permit direct charges on them such as conspiracy to torture and torture and not seek their liability for what went on below. However, cleary the majority has jumped to this issue it did not decide at this time and one wonders whether it is attempting to set the playing field before any criminal prosecutions of high-level present or former government officials.