Document Type

Article

Publication Date

Spring 2010

Keywords

Ashcroft v. Iqbal, Detainees, Torture

Disciplines

Civil Procedure

Abstract

In addition to its important implications for federal civil procedure, the Supreme Court’s decision in Ashcroft v. Iqbal put the imprimatur of the Supreme Court on a troubling narrative of the excesses carried out by the Bush Administration in the name of fighting terrorism. In this “few bad-apples narrative,” harsh treatment of detainees—especially in the immediate wake of the attacks of September 11th, but also years later in such places as Afghanistan, Iraq, the Guantanamo Bay detention center, and elsewhere—was the work of a small number of relatively low-ranking military and civilian officials who went beyond the limits of the law. The actions of these few bad apples, the narrative goes, were regrettable but not the result of official policy. Actions and statements by both the Bush and Obama Administrations promulgated the few-bad-apples narrative. Careful parsing of both the complaint and the Supreme Court opinion in Iqbal shows that in dismissing allegations that highranking officials in the Bush Justice Department ordered discriminatory abuse of detainees, the Court accepted that flawed narrative.

Publication Citation

Michael C. Dorf, "Iqbal and Bad Apples", 14 Lewis & Clark Law Review (2010)

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