All of the judges below concluded that plaintiff s core mory is by eight ball and they had the merger theer of liability, promising liability on the alleged decision of attorney general ashcroft to merge the new york list of detainees which had not been fully vetted by the ins list and continue to hold until cleared policy for detainees on both lists. The liability does not attach here for at least three reasons. First, the bivins remedy should not be extended to National Security and immigration policy decisions by senior officials in the wake of the september 11th attacks. In the damage remedy is to be impose side for not congress to do so. The list merger theory suffers from the same pleading deficiencies that the court identified in it ball itself. Among other thing, there is an alternative and a list merger decision. Given the uncertainty about the status of detainees on the new york list, the list merger was undertaken to avoid the inadvertent or premature release of a dangerous
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