May it please the court. This marks the return to the from the sames extraordinary circumstances in the wake of the september 11 terrorist attacks. The judges concluded the theory is disclosed. All of the judges below concluded that plaintiffs core theory is squarely foreclosed by iqbal, but the Second Circuit majority formulated their own list merger theory of liability, premising on the alleged decision of attorney general ashcroft to merge the new york list of detainees with the ins list, therefore continuing the hold until clear policy for detainees on both lists. Bivens liability does not attach for at least three reasons. First, the bivens remedy should not be extended to National Security and policy decisions by senior officials in the wake of the september 11 attacks. If the damages remedy is to be imposed, it is for congress, not the work, to do so. Second, the list merger theory suffers from the same deficiencies this court identified in kickball itself. Among other things, there is an in iqbal itself. Among other things, there is an obvious alternative and noninvidious explanation of the list merger decision. Given the uncertainty about the status of detainees, the list merger was undertaken to avoid the inadvertent release of a dangerous terrorist. Third, defendants violated no clearly established right. It would not have been clear to every reasonable defendant that merging the lists in the wake of the 9 11 attacks would be unconstitutional rather than risking premature release of a detainee. I think the easiest way for this court to resolve this case is through the iqbal pleading theory, but given this court costs admission that the existence of the bivens remedy is an antecedent question that we should address first, let me start their. Justice ginsburg you seem to be assuming that the whole case is about the merging of the list with the other list, but i thought this was identified as a prison conditions case. That broader theory was raised and rejected by every judge to consider it below the District Court and panel majority. It is also, i think, not within the scope of the question presented. Even if and i think the reason it was barred below was because it is squarely foreclosed by iqbal both on substantive due process and equal protection claims. On due process, what we have is a facially valid constitutional policy that could be applied to individuals with individualized suspicion of terrorism. If you look at the allegation, paragraphs 61 and 65, all that is alleged is that ashcroft and mueller met regularly page 274a on the appendix, paragraph 61 that ashcroft and mueller met with a small group of officials to exert maximum pressure on the individuals arrested. In paragraph 65 next page, that the punitive conditions in which they were placed was a direct result of the strategy. There is no allegation that ashcroft and mueller or ziglar created the punitive conditions or require them. They had the right as the Second Circuit and District Court held to presume that the policy would be implement lawfully. The only real theory that survives is the list merger theory, and that theory fails. I think it is critical to understand how the situation looked to the attorney general, attorney general ashcroft, who is alleged to be the decisionmaker. I will come back to the failure of the complaint to allege that he was decisionmaker, but even taking that, what he faced was the new york list which involve aliens, all of whom were out of status and had been picked up in the course of the pentagon bomb investigation. He knew that not all of those aliens had had individualized suspicion determination, but the may well have had ties to terrorism, and he knew that the conditions of confinement would be lawful. It is not disputed those would be lawful. Faced with that situation, the Second Circuit majority found the list merger decision could only be explained by punitive intent or discriminatory intent, but there is no alternative explanation. You could not tell who was and who was not who did and who did not have a potential link to terrorism. In that situation, a decision to hold everyone until clear, to apply the hold until clear policy, is best explained not by invidious intent but by the desire to avoid the premature and inadvertent release of a dangerous terrorist. Justice breyer for eight months . The list merger decision as early on they were held longer Justice Breyer i can understand after a bomb attack and 3000 people are killed. I can understand the first reaction of Law Enforcement authorities is to pick up anybody you might think is connected and worry about the rest later. Eight months . What they do allege is that ashcroft and mueller knew that the fbi had not developed any reliable evidence, paragraph 67, tying the plaintiffs to terrorism, but authorized their prolonged detention in restrictive conditions. And mueller, it says, ordered they be kept in ins custody and restrictive conditions, even after local offices reported they dont say reported to whom, so that is a point in your favor but that there was no reason to suspect them of terrorism. I think they are saying they authorized it. They knew some of these people had no information against them, but the answer is to pick up anybody who might have a connection and then just keep them there . That is what is worrying me a lot. Why doesnt that at least state an allegation . Suppose it had been five years, 10 years . We all know the problems with that. If you know it, i can see it for a day, two days. Five years . Eight months . Why isnt that an allegation that at least you have to deal with on discovery . I think the core of the allegation against ashcroft and mueller is not that they prolonged the detention. The policy in the list merger decision was facially constitutional because it adequately dealt with the dilemma they faced. Justice breyer how long after 9 11 did they adopt that policy . I believe it was within the first months. Justice breyer how many months . Your honor, i apologize, i dont have the exact i believe it is in october after the attacks. We are not talking this is not something that was done eight months down the road. This is something that was done as the officials are trying to sort through how to respond to the difficult situation that thd themselves in. He had a list that was not fully vetted. Some of the people had ties to terrorism may have had ties to terrorism. Some of them may well not have. In that situation, application of the hold till clear policy take a breath, lets figure out what is going on, rather than releasing everyone not only does not raise a discriminatory inference but did not violate any clearly established right to have done that. Justice ginsburg what about it is one thing, as Justice Breyer pointed out, to say you initially hold these people, but you know from day one that many of them have nothing to do with terrorists. And yet, you allow something that might have been justified in october to persist for months and months while these people are being held in the worst possible conditions of confinement. They are being held in restrictive conditions, but those conditions are lawful as to folks with individualized suspicion. There is the core of the claim that the Second Circuit saw against attorney general ashcroft was the decision to submit the individuals to the restrictive conditions in the first place. What i would say to that is it attempts to impose a 20 20 hindsight requirement on the attorney general and mueller and ziglar, who are involved only as having condoned the policy, that does not exist. The plaintiffs say there were no allegations of terrorism ties against us. But the attorney general did not know that at the time. He had a list that had somewhat ties. The policy to merge the lists and hold until cleared was facially constitutional if it was in some instances, took too long to clear, and certainly the oig report suggests that was the case, things did not move as smoothly as they should have that is not attributable to attorney general ashcroft, director mueller, or commissioner ziglar. Chief Justice Roberts is the argument you are presenting a bivens argument or a qualified immunity argument . We have been discussing qualified immunity, the iqbal argument, personal participation. We do agree the evidence argument should not be extended here. It would be quite an extension of bivens unprecedented to apply this to National Security and immigration decisions. With respect to National Security, what this court has recognized his National Security is committed to congressional authority, that congress is better placed to decide the appropriate remedy. The reason is not only a matter of institutional competence but that the risk of over deterrence in National Security is a real one and one that congress should make. I think that is the core of the decision in chapelle and stanley. The same is true with respect to policy decisions more broadly. Congress has provided a remedy to challenge policy decisions in apa, and in addition to that, policy decisions are much more likely to receive attention, as this that did, from the oig and from congress itself. Chief Justice Roberts the apa argument strikes me as odd, the idea that the people in prison are supposed to say, lets look at the administrative procedures act. What about habeas . Is that an available remedy . It was invoked by some, and those folks were released. Because the core of the complaint was, you are holding us without bond, we should be essentially deported for the illegal remedies. I do think the availability both of habeas and i take your honors admonition about the oddity of the apa, but if the apa does not apply, it is because congress provided it for policies provided review for some policies but not all. That is the congressional judgment. Justice ginsburg how could they have access to habeas when they were locked up without access to a lawyer, without access to a telephone . There were individuals who did file habeas petitions, and those individuals were largely released before the claims could be adjudicated. The point here is that given the extension of bivens would be quite extraordinary to a National Security and immigration context. The immigration concerns raise the same as National Security ones. Justice breyer i suppose in 1942, there was a president or secretary of defense who decided, lets take 140,000 people and lock them up for 10 years or five years or four years. You go with habeas right at the time. You could understand how in january of 1942, it would be pretty tough for a judge in a District Court to start secondguessing people. Several years later, people have the time to develop the information. They understand what people knew then, and they might find that in some of those instances, there was no justification whatsoever. I look at the bivens remedy and say one, it has a cautionary effect. It does not deter, were it necessary. Were it necessary. And then, where a big mistake was made, as the possibility of compensation later. That is the argument. Beware of cutting off bivens. You never know what will happen. I recognize your honor is not suggesting [crosstalk] you can with respect to your honor, i think it points out the problem with extending bivens to National Security policy decisions. Decisions in general. It should not be in the National Security policy context that this court should be calibrating the deterrence under deterrence and over deterrence in that situation. That is a judgment for congress. This is the problem with policies it cannot really be the case that the right way to get effective compensation is to put the attorney general, the director of the fbi, and the commissioner of the ins all on the hook. Justice kennedy what is the best authority that you have for saying, assuming there is a bivens action, it has to be cut off at the lower level, not the highest level . It is not the highest level of officials, it is when there is a broad National Security policy. I think that is what this court of malesko, its not through bivens, it is ordinarily through injunctive action. If i could reserve the balance of my time. Chief Justice Roberts thank you, general. Thank you, mr. Chief justice, and may it please the court. On behalf of mr. Hasty and sherman, i want to begin with qualified immunity particularly in respect to the conditions. This case asked the court to hold the individual jailers are responsible in damages for failing to overturn fbi terrorism classifications and the confinement conditions they produced. But a reasonable jailer would have understood and believed it lawful to do as directed, which is to hold detainees in restrictive conditions based on fbi designations Justice Ginsburg how do you determine the level of restriction . This is not just restriction. The answer is that the bop directed to use the most restrictive conditions permissible. The specifics were left to mr. Hasty and sherman. But theres no allegation that there is unconstitutional conduct based on what the bop directed and what mr. Hasty and sherman did. The fbi did not actually have information connecting these individuals to terrorism. And that mssrs. Hasty and sherman should have somehow known that and it was impermissible to impose conditions on these respondents. That does not make any sense from a policy or qualified immunity perspective. Mssrs. Hasty and sherman are jailers. They are not trained in determining security classifications or Connections International terrorism. They cannot be held liable for failing to overturn the fbis determinations. Just last week, this court held there is no clearly established law that requires an officer to overturn or secondguess a fellow officers decisions. That should go double when you are asking the jailers to overturn the determinations made by the fbi. The jailers dont get to release people because they decide the court got it wrong. Actuallyhe people are innocent. Justice ginsburg what about all the conduct that was not directed by the attorney general or the fbi . I think you are referring to the unofficial conditions or the unauthorized abuses by individual guards. Justice ginsburg am i right that as to those, the Second Circuit was unanimous . I think they overlooked one critical thing. They tended to read this complaint as if it were a complaint for injunctive relief. There were a lot of things wrong that should be redressed by the courts. But it is not. This is an action for individual damages against mr. Hasty for conduct committed by others. In order to establish a plausible claim to that sort of relief, liability that he plays damages were others did, you would have to show that mr. Hasty not only knew there was misconduct and he needs to intervene but that after he failed to intervene, then the plaintiffs were injured as a result of the failure. That their injuries were caused by what mr. Hasty failed to do. That is what is missing from the Second Circuit analysis and what is missing from the complaint. There is no temporal connection, no connection whatsoever Justice Ginsburg you are in charge of the detention facility and all these things are going on. Prisoners up against the walls, arms twisted, complaints. And nothing is done and it continues to go on. Justice kennedy and the allegation is that he deliberately did not make a routine inspection of that portion of the prison in order to be willfully blind. There is no doubt misconduct occurred and there is no doubt that mr. Hasty sees the complaints. But what is missing is these individual plaintiffs being injured after this is brought to his attention. If you review the complaint, it does not have a moment where he learned, and after that we were injured. It is more of a blunderbuss because there were a lot of bad things happening, mr. Hasty is reliable for all of them. Justice ginsburg you cant pinpoint a particular moment in time when this is ongoing behavior. I think the answer is that you can pinpoint his awareness and injuries that these respondents are claiming damages for. Justice breyer in paragraph 74, it says, indeed, after a few months of interacting with the plaintiffs i take it those are the people we are talking about realized that they were not terrorists but merely immigration detainees, yet the restrictive conditions and harsh treatment continued. What is that but an allegation that they did know about it and did continue the harsh treatment . Referring specifically to the unofficial abuses by the guards as opposed to the official conditions. What is missing there is what happens afterwards. What were the specific abuses he was aware of . Is this guard misconduct or tapping the bars in keeping people awake . Justice breyer it is restrictive conditions and harsh treatment. That is exactly the difficulty. He is aware of harsh treatment generally and therefore, he must be aware of all harsh treatment that occurs after that awareness. You cannot say he is abusive generally with no particular timeframe and hold him liable for every intentional tort that occurs in this institution. Paragraphs 74 and 77 actually illustrate precisely the problem. They dont say which abuse he is aware of. They dont say whether it predates or postdates the claims. They must present facts that show that mr. Hasty is personally responsible. When they finally get to a date, paragraph 110, they say february 11, 2002. By february 14, four of the six respondents were already outside. They never explain why awareness after a time when they are out of the institution is a basis to hold mr. Hasty viable. With respect to the official conditions, qualified immunity must be granted. There is simply no basis for saying that every reasonable jailer would understand they had to make their own determination that these were not terrorism detainees and overturn the fbi. That is especially true given that the fbi was making the determinations and clearing people. There is no clearly established law that requires jailers to be making those decisions for the fbi. Society would be ill served if we asked jailers to do that. Theyre not experts in National Security. Finally, with respect to the scope of bivens, factors in this case counsel hesitation. One of saying that individual jailers must secondguess the fbi . What are the consequences for the governments ability to have a coherent response to a National Terrorist attack . That is precisely the type of thing that Congress Rather than courts should decide. In addition, the linchpin of the claims is that the fbi had gotten these things wrong. That means they need to prove that the fbi had things wrong. It cases like this implicate the need to access sensitive chief Justice Roberts so if the official policy, that we want to beat the prisoners everyday and that was the fbi policy communicated down, the prison administrator has no choice but to carry out the policy . No, your honor. In terms of there being a facially unlawful command, that is where you dont have qualified immunity. But there is nothing facially unlawful about saying, impose the most restricted conditions permissible until cleared. We all wish the fbi had been acting faster and these individuals could have been removed more quickly, but that is not the fault of the individual jailers. Their job is to maintain secure conditions. With respect to bivens, the illegality or lawfulness of the conduct is not the determination in whether or not bivens should be extended in a new context. What determines that is whether or not this court has the institutional competence to make a decision. Especially since cases like this one turn on whether or not the fbi was right or not in its terrorism designations, that implicates potentially sensitive intelligence information. If that is going to be pulled into a lawsuit, courts should not be in the business of creating risks to intelligent information. That is the sort of decision that congress should make. Justice breyer anything about the hypothetical i gave, which is a real one . If you cut bivens off totally, what prevents that from recurring . You get my point. I think this case proves exactly what happens. We have an oig Justice Breyer there are many remedies in the judicial system. There is an ftca that was brought, in which they recovered money in a settlement. There are lots of remedies. Indeed in this case with the individual guards, there was a lawsuit. The oig report recommended discipline and that was meted out. Thank you. Chief Justice Roberts thank you, counsel. Mr. Chief justice. Under petitioners theory, any muslim or arab noncitizen in the country could be placed for months in solitary confinement for violating Immigration Laws. This court has a historic role to play in ensuring that race and religion do not take the place of legitimate grounds for suspicion and deterring future federal officials from creating government policy to do the same. Chief Justice Roberts that role includes the shaping and announcement of private damages remedies . We have been very explicit about the restraint in extending the bivens action beyond its original contours. That is correct, mr. Chief justice. We dont believe this requires any extension of bivens. When this court heard iqbal, the court distinguished between the claim of religious discrimination, which the Court Assumed would have required an extension of bivens and assumed it would be so extended because the issue is not directly argued, but the court treated differently mr. Iqbals claims for equal protection violation, noting that the court had allowed bivens claims for equal protections violations. There is no way to read the distinction between those two claims other than an equal protection claim arises in a familiar bivens context. The court has in the past allowed prison conditions claims under bivens. There is nothing new here. Justice kennedy that was failure to give medical treatment. Bivens engendered discrimination case coleman v. Miller, i think. But we have been very careful in subsequent cases to say, we dont go any further, this is for the congress. I think you are asking this to go further. I think you are asking a legitimate argument with many valid points you are asking us to create a new bivens cause of action. If it is a new bivens cause of action, i submit it is appropriate. What the petitioners argue is that bivens should not be extended because they were setting National Security and immigration policy, but the core of our complaint is that there was no sensitive National Security judgments being exercised. No one was being vetted. No one was determined to be a threat. This is not a situation where the court would have to look into sensitive National Security determinations that were made. Rather, if there was National Security judgment exercised, it was the judgment that race or religion could play the part of legitimate suspicion. Exploring that chief Justice Roberts im not sure i understand. It was the implementation of National Security policy in response to the 9 11 attacks. It was to detain people. Every one of the individuals detained was in violation of their immigration status. It was to detain those individuals until they were properly cleared and could be released. You may disagree with that approach to the policy, but what concerns me and why the restraint is appropriate in the bivens context, is that it is a way of challenging the National Policy through damages actions against the individuals implementing it. I think that is an extraordinary departure from what we recognize bivens in the past. This does arise in a National Security context. The question is whether the National Security context of these detentions, the type of determinations were being made, are unsuited for bivens because either they should be left to congress or outside of this courts core competence. I would submit this is the kind of examination that is within this courts competence. Chief Justice Roberts my point is a different one. The question you are asking the court to do is to shape our remedy for that, a remedy that congress has not provided. To look at it in the simplest terms, it has been 40 whatever years since we adopted an approach to implied rights of action under statutes, where we say, if Congress Wants to allow people to bring individual damages actions, they have to say so. It seems to me it is the same approach here, except you are dealing with the constitution and the idea that the court lacks the institutional competence, saying there is a constitutional claim against the National Policy, we think the best way to consider that constitutional challenge is to allow people to sue individuals responsible for implementing it for damages. You shaped the policy of the National Government in response to 9 11, therefore you have to pay money because there has been a determination that was unconstitutional. It is certainly true that the court has stepped back from freely implying private causes of action, but in every bivens case before this court, the court has still engaged in the twostep inquiry looked to see whether there are special factors that should keep the court from staying its hand and weighed the interest on the other side of the equation. Each time, the court has reemphasized that bivens is about deterring individual federal officer misconduct. When a federal official creates an unconstitutional policy, he is creating policy, but he is also acting as an individual to violate what in this case would have to be clearly established constitutional norms. Chief Justice Roberts the point made by your friend on the other side is over deterrence. When you have the attorney general, director of the fbi, director of ins, thinking, what are we going to do to respond to this crisis . People who are old enough have a better sense of what that crisis was like. If you imply a bivens action, what is going to enter into their mind is, what is best and presumably what is constitutional . Theyre going to say, if i am wrong, im going to be sued. Not because i am attorney general, but as an individual. Part of the policy we have announced is we dont want people forming policy to have to worry about if they are going to have to pay if the policy is found ill formed. First of all, qualified immunity creates a powerful protection for federal officials who are undertaking a good faith effort to protect our National Security, which everyone agrees is of paramount concern, but to do so believing their actions to be lawful, even if they are mistaken. There is already that incredibly substantial protection. Second, i dont believe it would be a threat to the republic to provide the attorney general with incentive to not create policy that violates clearly established law. I see the threat coming from the other side. I would like to make sure to take the time to correct Justice Breyer one other thing has this been fully argued out below . I think it is enormously important and a very open question, and we could say on the one hand, what the chief justice said is true. There is a problem in this time of Real National emergency. To over deter people from doing what they reasonably think is necessary when they have the authority for security, not the judges. At the same time, the law of this court directly is there is no blank check, even for the president. That means sometimes they can go too far, and if they have, it is our job to say that. There are considerable advantages, as i pointed out, saying at the time, they are going to say yes, because theres a big frightening thing happening. But maybe they went too far too fast, and then this offers a remedy later, and maybe deterrence is good. You see both sides. Has that been fully argued in this case . If i go and look in the record, and i find the question that i have wondered about for quite a long time fully answered. I dont believe so. I think the question youre posing is whether damages would actually be a less intrusive remedy in the situation than allowing for an injunctive relief claim at the outset, if i understand your question correctly. I dont believe that has been fully addressed below. The circuit found no extension of bivens was required, so the circuit did not engage in the analysis of whether, if an extension is required, one in this situation would be called for. My friend argued both on reply and from the podium that even that this case cannot be distinguished from iqbal, but what distinguishes it is that respondents have a factual allegation that the doj petitioner policy was to target muslims and arabs for harsh treatment and that they imposed this treatment knowing there was no reason to expect respondents of terrorism. My friend argued that even if doj petitioners had known that many were arrested without an articulable tie to terrorism, that the petitioners had reason to believe that some among that group might have potential ties to terrorism, and that explains the harsh treatment without raising an inference of discriminatory intent. But i dont believe thats a fair reading of the complaint or the oig report. Respondents allege in paragraph 47 that petitioners received detailed daily reports of the arrests and detentions and that they learned that the fbi had no basis to suspect respondents in the class of ties to terrorism. There was no reason to think any of these individuals had an articulated basis to suspect them of ties to terrorism. Justice kennedy we are talking about adequate remedies. Can you tell me, as Justice Ginsburg pointed out these detainees didnt have access to the outside. Were there any Legal Proceedings filed after month two, month three, and were those asking the District Court to say, were not going to give relief . There were some habeas petitions filed. The governments response was to move the detainee up to the front of the list, to clear him so he could be removed from the country before a court could have the opportunity to rule on the legality of the detention. Importantly, those habeas petitions were about the right to detain those people in itself, not about conditions of confinement. It is still not clear today that one can use a habeas petition to challenge conditions of confinement, and it was not clear in the Second Circuit at the time either. While habeas petitions were filed eventually when some detainees finally had access to counsel although restricted access those petitions were not actually ruled on by a court. No court had the opportunity to determine whether what was happening to the detainees was lawful or not. That was part of doj petitioners entire policy of harsh treatment. It was not just to impose maximum pressure. It was also, as we allege in paragraph 61, to keep the detainees from accessing the outside world. My friend argued that the doj petitioners cannot be on the hook for this substantive due process claim in this case, a claim that was not presented in iqbal. There was no conditions claim, just the protection claim, because the doj petitioners did not set all of the details other than restricted conditions. But their order itself in paragraph 61 requires keeping individuals in solitary confinement and isolation. Thats a way within the prison System People are kept from accessing the outside world. It cannot be done in the general population unit. So an order that requires solitary confinement for individuals who are arrested in connection to the terrorism investigation but whom the attorney general and other doj petitioners know there is no nondiscriminatory reason to suspect of any ties to terrorism that states a substantive due process claim. That is so excessive as to be arbitrary and punitive. This is what the panel found so compelling about the merger of the new york list and the national list. It was not a situation where some of the men on that list had not been vetted. Rather the entire list, 300 men, were people for whom the fbi had not stated any interest or lack of interest. It was this list of men who we allege attorney general ashcroft ordered should be treated as of interest to the 9 11 investigation. Justice kennedy if we hold that our previous cases instruct we should not go further with bivens, you still have section 19853. Can officials conspire with each other echo with each other . Absolutely. Justice kennedy is there precedent on that . What the circuit held to that is that the question of whether officials can conspire with each other is so fact intensive and has been so inconclusively briefed in the District Court that it was required to be remand back to the district to determine how they might have conspired with each other, what their petitions were to each other such that a 1985 claim would be appropriate. Justice kennedy is it your view that there can be conspiracy if it is established by the fact . Yes, i believe the cases by the Second Circuit. Chief Justice Roberts what is so fact intensive about the argument that government officials, the government is the entity and officials within the same entity dont conspire among themselves . Theyre just doing their jobs. I think it depends on the role of the high level officials vis a vis the role of the high officials at the metropolitan detention center. Certainly we argue that officials at such disparate levels of the federal government, which is vast, could be held to have conspired with each other, but i dont think its an argument that was fully developed before the District Court, and that was what the circuit held, and that is why it should be remanded to the circuit. I want to make sure to address the arguments by the mdc petitioners. Because really, their argument about not extending bivens for the claims against those officials is very different from the argument by the doj petitioners. Every judge who has considered the issue has agreed that the claims that hasty and sherman were deliberately indifferent to months of physical and verbal abuse arise in a familiar bivens context and should be allowed to go forward. Justice Kennedy Carlson versus green . Justice ginsburg i thought the Second Circuit majority said yes to hasty, deliberative indifference, but not to sherman. That is correct, i must have misspoke. The deliberate indifference claim goes forward against hasty, and then there was claims against hasty and sherman for the official conditions of confinement at the metropolitan detention center. Claims that the men were held in solitary confinement for months, deprived of sleep and exercise. This is not just the mdc petitioners following the orders from their superiors. They created the actual conditions of confinement. There is nothing in the record to suggest that the bop ordered that all the additions respondents were subjected to lights on in their cells 24 hours a day in solitary confinement that the solitary confinement continue without any review Justice Alito were those conditions constitutional as to individuals about whom the fbi had reasonable suspicion of a connection to terrorism . That would depend. Placement in solitary confinement, if it is incredibly prolonged and restrictive, may be unconstitutional for anybody. We dont concede Justice Alito your argument depends on that, that it would be unconstitutional even with those with respect to whom the fbi had reasonable suspicion. No, but brings up an incredibly important point. Which is that we disagree with the mdc petitioners statement that there was a terrorism designation, that there was reason to believe that any of the 9 11 detainees had ties to terrorism. There was no designation. What there was is the fact that some men were arrested in connection to the terrorism investigation. Justice alito as i understand it, the fbi had a list and there was no way they could determine what degree of information the fbi had for any particular person. But they were told what information the fbi was relying on. That is in paragraph 71 through 74 of our complaint, that liaisons to the headquarters investigation was providing the mdc with information about all the men. Justice alito you think the fbi, in an investigation of something sensitive about terrorism, would necessarily have told people at mdc every bit of information they had connecting people to terrorism . They were told all the information relevant to the threat the men posed to the institution. Also important is what the oig has explained about the meaning of the ofinterest designation. Being determined by the fbi to be of interest to the 9 11 investigation meant only that they were not not of interest. This was not just something happening in new york. The oig quotes the head of the National Security unit of the inf, saying if the fbi could not state whether it had interest, that individual was held as of interest. Even if there is word being sent out that these men are of interest to the investigation, we have to be careful with them, what the mdc petitioners received was that ofinterest designation, which meant very little based on policy being applied here. And then they received the detailed information for example that one person was arrested by the fbi in the context of the 9 11 investigation and had violated Immigration Law and that the fbi might be interested in him. This is the actual information that was provided that we have made available in the complaint. Justice breyer the fbi goes into a rooming house after having information there is a Nuclear Weapon on the floor. They find it. And there might be another. Would they be justified in taking into custody every Single Person in that rooming house and looking into it . I mean, for how long . Would you say no, you cant do it . Because we know there are people who know nothing about it. All we know is they are in the rooming house and we also know there was a Nuclear Weapon. That is not totally fanciful. It could happen. What are they supposed to do and how long . We dont challenge the fact that these men were detained at all and we dont challenge they were investigated while they were detained. Even if they had been detained some of them for up to eight months and there is no challenge to that detention in this case. The challenge is to the way they were treated while they were detained. If you need to investigate after a National Security emergency, there are a lot of tools at the governments disposal to do so. What you cannot do is single out a group of people who you know there is no basis to suspect them of any ties to terrorism beyond sharing racial and religious characteristics with a 9 11 hijackers, and to decide they pose such a threat they must be placed in the most restrictive conditions that exist while we take the time eight months to determine whether there actually is any basis to suspect them of anything other than an immigration violation. At the end of the day, there wasnt. Everybody was cleared and deported. As one would expect from a policy that is not based on investigating, based on actual suspicion, but is rather a blunderbuss attempt to gather muslim and arab noncitizens, whom one has authority over by virtue of their immigration conditions, and hold them in confinement while they are treated as suspected terrorists. If i could get back to one of the bivens questions, about whether bivens is appropriate for altering the policy. I dont know if i was able to get this point out as well as i would like before. I dont think there is really any precedent for the idea that you cant use bivens to deter creation of a clearly unconstitutional policy. If the court did rule in that way, what would there be to deter the creation of unconstitutional policies in the future . Of course, policies can be stopped as they are ongoing, but that does not protect the individual against whom potential serious Law Enforcement action has been taken. Chief Justice Roberts i suppose one answer would be the normal injunctive action would be to challenge the constitutionality of the policy. Which would seem at first blush to be a more appropriate way of doing it than individual damages actions against officials responsible. But injunctive claim, while it could stop current unconstitutional conduct, cannot deter future unconstitutional conduct from occurring. It does not deter a future attorney general from creating an unconstitutional policy. If National Security policy is somehow insulated from judicial review, without a determination that this is a type of National Security policy where we could expect there should be sensitive judgments made if in that situation, there is no bivens remedy, then there are times when the court will be able to play no role in reviewing what has occurred. Because individuals simply cannot get into court fast enough. Maybe in a situation like this, they are denied from getting into court for a period of time and when they finally do, they claim the way they have been treated is stopped. They are released and someone else is picked up instead. There is never a chance to actually undertake judicial analysis. If qualified immunity justifies what was done here or if petitioners have not plausibly alleged a claim, those are bases to affirm the circuit, but if theres no cause of action at all, if individuals who are the subject of clearly unconstitutional National Security policy dont even have the opportunity to get into court, then there is nothing to deter even more excessive exercises of government power in the future. Chief Justice Roberts thank you, counsel. Four minutes. Thank you, mr. Chief justice. A few quick points. First, a few short corrections of the record. Although i apologize for the confusion about the date. It is not in the complaint, the date of the list merger decision. The oig report suggested it was on november 2. Justice ginsburg, you had asked about the warden visits. Ja page 224. It says on september 20, 2001, various wardens reestablished legal visits and telephone calls and legal mail for the september 11 detainees. Justice ginsburg what was the date of that . That was september 20, 2001. Thats on page 224 of the joint appendix. And three points on the law. This would be would be a massive extension of bivens. Malesko said, unlike the bivens remedy, which we have never considered a proper policy for altering policy, injunctive relief has long been recognized as the proper means for doing so. That makes good sense. It cannot be that the secretary of the treasury who promulgates a policy later found unconstitutional could be liable personally to all the banks for the unconstitutional policy. The absence of bivens is not lawlessness. It is not a blank check and it is incorrect to say that there is no way to get into court. The way to get into court to challenge a policy is through apa, injunctive relief. Although my friend on the other side suggests a damage remedy is not a threat to the republic, that is exactly the judgment that this court is illequipped to make and that congress should make. With respect to 19853, i want to make one quick point, which is that the doj defendants would be subject to qualified immunity because it was not clear that officials within a corporate unit could conspire with each other. There is case law suggesting they couldnt. It was unclear in the Second Circuit whether 19853 applied to federal officials. Qualified immunity would eliminate the 19853 claim. And then if i could close with the iqbal pleading. The other side has made clear they are not talking about the length of time, they are talking about the conditions. That conditions that would be lawfully imposed on people in suspicion would be imposed to a broader group. I submit that ignores the perspective of the attorney general, assuming he was the person who made the policy decision, which we should not assume. Justice kennedy the fact that it was not clear there was a remedy under 1985, it does not follow there was not a right that was being violated. With respect to the interagency conspiracy, i think that suggests the right was not barred. It is not clear the statute applies at all to them. We think that is a situation in which qualified immunity would attach. To close with what the attorney general knew he knew he had aliens who were legally detained as out of status, that restrictive condictions of confinement not the unofficial conditions, which have no connection to my clients but the restrictive conditions were ok for some who had individualized suspicion, but he had no way to know which ones were and were not subject to that condition. In that situation, he made the decision to subject the group to a hold until clear policy until they can figure it out. The idea that because, in 20 20 hindsight, we can identify the particular individuals who are not connected to terrorism and thus were wrongly detained, does not change the reasonableness of his judgment and the fact you cannot infer punitive or discriminatory intent and the fact it was not clearly established that the list merger decision, a core of what the Second Circuit decided, that that was unconstitutional when made. If there are no further questions. Chief Justice Roberts thank you, counsel. General, before you leave the podium, i would like to note that the court thanks you for your service to the court as acting solicitor general over the past months. The case is submitted. [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. 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