your argument next this morning in case fifteen thirteen fifty eight versus abbassi mr gershon going mr chief justice and may it please the court this case marks the return of ball as plaintiffs seek to hold essentially the same defendants liable for the same actions arising in the same extraordinary circumstances in the wake of the september eleventh terrorist attacks all of the judges below concluded that plaintiff's core theory is squarely foreclosed by it all but the second circuit majority then formulated its own list to merger theory liability premising liability on the alleged decision of attorney general ashcroft to merge the new york list of detainees which had not been fully vetted with the ins list thereby continuing t hold until cleared policy for detainees on both lists defense liability does not attach here for at least three reasons first the bivins remedy should not be so extended to snatch security and immigration policy decisions by senior officials in the wake of the september eleventh attacks if the damages remedy is to be imposed it's for congress not this court to do so second the list merger theory suffers from the same pleading deficiencies that this court identified in it ball itself among other things there is an obvious alternative and non invidious explanation of the 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 terrorist and third the defendants here violated no clearly established right it would not have been clear to every reasonable defendant that merging the lists in the wake of the nine eleven attacks would be unconstitutional rather than risking premature release of a detainee on the new york list i think the easiest way for this court to resolve this case is through the it paul pleading theory but given this court's admonition that the existence of the bivins remedy is an antecedent question that the present condition case so your honor that broader theory was raised below it was rejected by every judge to consider it below the district court and the panel majority and it it is also i think beyond the it's not within the scope of the question presented but even if if and i think the reason that it was barred below is because it's squarely foreclosed by lit by it ball both on the substantive due process claim and on the equal protection claim on the substantive due process claim what we have is a facially valid constitutional policy to two that could be applied to individuals with individualized suspicion of terrorism and if you look at the allegations in the complaint and these are paragraphs sixty one and sixty five of the complaint all that is alleged is that ashcroft and mahler met regularly with ace this is on page two seventy four a of the appendix to the petition that in the and this  paragraph sixty one that ashcroft and mahler met with a small group of visuals to exert maximum pressure on the individuals arrested and then in paragraph sixty five on the next page that the punitive conditions in which the m d c a class members were placed with a direct result policy would be implemented lawfully the only real theory that survives i think your honor really is the list merger theory and that theory fails i think it's critical to understand in that context how the case how the situation looked to the attorney general to attorney general ashcroft who is alleged to be the decision maker i'll come back to the to the failure of the complaint to allege that he was the decision maker but even taking that what he faced was the new york list which involved aliens all of whom were out of status and had been picked up in the course of the pentagon investigation he knew that not all of those had had individual i suspicion determinations but that some may well have had ties nexus to terrorism and he knew that the conditions of confinement would be lawful it is not disputed that those would be lawful as to those with individual eyes suspicion faced with that situation the second circuit majority found that that list murder decision could only be  or by discriminant torrie intent but there is an obvious alternative explanation for the decision that attorney general ashcroft would have faced in deciding to murder the list is that you couldn't tell who was and who was not  who did and who did not have a potential link to terrorism and in that situation a decision to hold everyone in till cleared to apply the apply the hold till clear policy is best explained not by invidious intent but by desire to avoid the premature and inadvertent release of a dangerous terrorist out there through it on several months eight months i think to list emerge a decision is early on in the us is and that's what exactly they held for eight months they were held longer and seven times the plane just to terrorism but authorized their prolonged detention in restrictive conditions and mueller it says ordered that they be kept  restricted conditions even after a local office is reported they don't say reported to who so that is a point in your favor but that there was no reason to suspect them of terrorism but i think fairly read they're saying they are ok they authorized it they knew that some of these people had no information against them but the answer is pick up anybody who might have a connection and then just keep them there i mean that's what's worrying me a lot and why doesn't that at least state an allegation suppose it had been five years suppose it had been ten years i mean we all know the problems with the and and if you kno i can see it for a day two days five years eight months why isn't that an allegation that at least you have to really deal with on discovery and your because i think the core of the allegation against ashcroft and mueller is not that they prolonging the prolong the detention the policy that they adopted in the list murder decision was facially constitutional because it and because it adequately dealt with and fully dealt with the dilemma that they face how long after nine eleven did they adopt that policy i believe it was within the first months after nine eleven first months how many months your honor i apologize i don't have the exact will is it more like eight months from now iran or no it is in october i believe it's in october or after the in october after the after the after the attacks and so we're not talking this was not something that was done late months down the road this is something that was done as the officials are trying to sort through how to respond to the very difficult situation that the if you accept that the attorney general made the decision that he found themselves in he had a list that was not fully vetted some of the people on the list had ties to terrorism may have had ties or some of them may well not have and what was in that situation application of the hold till cleared policy take a breath let's figure out what's going on rather than releasing everyone is was not not only doesn't raise a discriminatory inference but it does not violate any clearly established right to have done that now the second search when  they are being held in restrictive conditions of confinement but those can conditions are lawful as to folks with individual i suspicion now the the 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 to the restrictive conditions in the first place and what i would say to that is it understate it attempts to impose a twenty twenty hindsight requirement on the attorney general and on director mueller and ziggler who are who are involved only as having quote condoned the policy that just doesn't exist the plaintiffs say we had there were no allegations of terrorism ties against us but of course the attorney general didn't know that at the time what he had was a list that had some with ties and some after and the policy to merge the list and hold until cleared was facially constitutional if it took if there was in some instances took too long to clear and certainly the reports suggest that was the case that things did not run as smoothly as they should have that is not something that's attributable to the to attorney general ashcroft director mueller or to two commissioners ziggler and so is the argument you're presenting bivins argument were qualified immunity so your honor the argument we've been discussing now is the qualified immunity it paul argument is the personal participation but we do think bivins remedy should not be extended here at all it would be quite an extension of bivins unprecedented to apply this to national security and immigration policy decisions and we think all three of those factors work together with respect to national security what this court has recognized is national security is committed to congressional authority that congress is better placed to to decide the appropriate remedy and the reason for that is not only a matter of institutional competence but that the risk of over deterrence in the national security context is a real one and it's one that congress should make and that's i think the core of this court's decisions in chapell and in stanley i think the same is true with respect to policy decisions more broadly congress has provided a remedy to challenge policy decisions in the a p a and in addition to that policy decisions are much more likely to receive attention as this set of policy decisions did from the zero i g and from from congress itself is there the a p a argument strikes me is as somewhat odd i mean the idea that the people in prison are supposed to say let's look at the administrative procedures act what about  isn't available remedy and indeed it was used by invoked by some and those folks were released and it does because the core of the complaint was you're holding us without bond we should be essentially deported for the legal remedies and so i do think that the availability both of pay b s here and i take your honors i take your honour's admonition but about the oddity of the a p a here but if the a p a doesn't apply here it's because congress provided it for policies and provided review for some policies but not for all policies and that is where that is the congressional judgment but it seems to me that how could they have access when they were locked up point here is that that there had been the extension of bivins would really be quite extraordinary to a national security and immigration policy context the immigration concerns i think do raise the exact same concerns your honor as the national security one i suppose that in nineteen forty two there was a president or a secretary of defense who decided let's take one hundred forty thousand people of sixty thousand to seventy thousand citizens and and sixty thousand non citizens and lock them up for ten years or five years or four years right you go with a b s right at the time you could understand how in january of one nine hundred forty two it would be pretty tough for a judge you know a district court to start second guessing people but 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 and i look at the buildings remedy and say one it has a cautionary effect but doesn't deter where necessary where necessary and then where many big mistake was made it has the possibility of compensation later and that's the whole argument would be aware of cutting off investigation ok i'm worried about even respect to your honor's i think it actually points up the problem with extending begins to national security policy decisions into policy decisions in general it should not be in the national security policy context that this court should be calibrating the the deterrence and under deterrence and over deterrence in that situation that is a judgment for congress and if your honor is serious about compensation and this is the problem with policies it should it can't really be the case that the right way to go to get effective compensation is to put the attorney general the director of the f b i and the commissioner of the ins personally on the hook for the whole class the secretary of defense or what's the best authority seventy four of molest go that the way to challenge policy decisions is not through bivins it's ordinarily through an injunction injunctive action if i could reserve the balance of my time thank you general this case asked the court to hold the individual jailers are responsible in damages for failing to overturn f b i terrorism classifications and the confinement conditions they produce truth your honor the answer is that the b o p directed that the if you would use the most restrictive conditions permissible the specific implementation was left to mr houston sherman but there is no allegation that the diff difference between there was unconstitutional conduct based on the difference between what the b o p directed and what the and what mr hastings sherman did the allegation here is that it was impermissible to impose these highly restrictive conditions because the f b i didn't actually have information connecting these individuals to terrorism and as in mr hussein sherman somehow knew that now israel it was in permissive impermissible to impose these conditions on these respondents but that doesn't make any sense from a possibility perspective and it doesn't make any sense from a qualified immunity perspective to mr hussein sherman our jailers their expert in ensuring secure conditions they are not trained in determining security classifications or connections to international terrorism they cannot be held liable for failing to overturn the f b i s determinations after all just last week this court held that there is no clearly established law that requires an officer to overturn or second guess the fellow officers decisions made in particular contacts that should go double when you're asking the jailers to overturn the determinations made by the f b i the jailers don't get to release people because they decide the court system got it wrong and the people are actually innocent and  relief there were a lot of things wrong they weren't being ridge arrest they should be redressed by the courts but it's not this is actually an action for individual damages against mr he state for conduct committed by others in order to establish claim to that sort of relief liability that he pays damages for others did they would have to show that mr history not only knew that there was this misconduct not only knew that that he needs intervene but that after he failed to intervene then the plaintiffs were injured as a result of the failure to intervene that their injuries were caused by what mr hastie failed to do and that's what's missing from the second circuit's analysis and that's what's missing from the the complaint there's simply no temporal connection no well there's there's no doubt that misconduct occurred and there's no doubt that mr he actually sees the complaint because that's part of the grievance process but what's missing from this is these individual claims just being injured after this is brought to his attention  damages for and he said in paragraph in their paragraph seventy four it says indeed after a few months of interacting with the plate is the m d c defendants i take it those people we're talking about realize that they were not terrorists but merely immigration detainees yet the restrictive conditions and harsh treatment continued so what is that but an allegation that they did know about it and they did continue the harsh treatment so just aspire referring specifically to the unofficial abuses by the guards as opposed to the official conditions temporarily what's missing there is what happened afterward what were the what were the treatment generally and therefore he must be liable for all harsh treatment that occurs after that awareness we cannot say that he there is abuse is generally with no particular timeframe and then hold him liable for every intentional torte that occurs institution and i think that paragraph seventy four and seventy seven which the second circuit described does detail actually illustrate precisely the problem they don't say which abuse is aware of they don't say when whether it pre dates or post dates the claims that they have they must be facts that show that is personally responsible in fact when they finally get to a date which is paragraph one ten of the complaint then i say february eleventh two thousand and two well by february fourteenth two thousand and two for the six respondents are already outside of ad they never explain why awareness on a time after their left institution is a basis for holding mr hastie liable if i could go back however to the official conditions your honor with respect to the official conditions qualified immunity must be granted there's simply no basis for saying that it is the every reasonable jailer would understand that they had to make their own determination that these were not terrorism detainees and overturn what the f b i was telling them and it's especially true given that the f b i was throughout this process making determinations and clearing people there's no clearly established law that requires jailers to be making those decisions for the f b i in fact society would be ill served if we asked jailers to do that they are not experts in international terrorism decide what are the consequences of saying that individual jailers somebody all the way up automat food chain must second guess the f b i one of the consequences for the government's ability to have a coherent response to a national terrorist attack that is had things wrong it implicates he says like this implicate the need to access sensitive no if the official policy that was adopted that we want to be the prisoners you know every day and that was the f b i policy and it's communicated down the prison administrator has no choice but to carry out their policy no your honor i think in terms of there being a facially unlawful command that is where you don't have qualified immunity but there's nothing facially unlawful it says impose the most restrictive conditions permissible based on f b i doesn't missions intel the individuals cleared by the f b i and while we all wish the f b i had been acting faster in these individuals could been removed more quickly but that's of the individual jailers their job is to maintain secure conditions and that's what they were doing and with respect to begins your honor the illegality or lawfulness of the conduct challenged isn't the determination of whether or not given should be extended to a new location a new implicates potentially sensitive intelligence information if that is going to be pulled into a lawsuit court should drop in the business of creating those lawsuits in creating possible risk for intelligence information that is precisely the sort of decision that congress rather than the court money on in the settlement there are lots of remedies that occur and indeed in this case with respect to the individual guards there was a lawsuit against them in the third amended complaint the oh i g report right recommended discipline and discipline was meted out thank you thank you counsel  mr chief justice and may it please the court under petitioners theory any muslim or arab non citizen present in this country could be placed for months in solitary confinement for violating the immigration law but 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 in deterring future federal officials from creating government policy to do the role includes the shaping and announcement really of a private damages remedies the we been very explicit about the restraint in extending the buildings action beyond its regional justice and we don't believe that this requires any extension of bevins whatsoever when this court heard all the court distinguished between mr x balls claim of religious discrimination which the court assumed would have required an extension of bevins and the court assumed that it would be so extended because the issue was not directly argued before the court but the court treated differently mr x balls claim for an equal protection violation noting that the court had divisions claims for equal protection violations under davis and there is no way to read the distinction between those two claims in a ball other than that an equal protection claim such as the one that these respondents have arises  an appropriate one here now what the d o j petitioners argue is that they haven't 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 and 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 in this case race or religion could play the part of legitimate suspicion could play a proxy and it exploring would add i understand your point it was it was the implementation of national security policy in response to the nine eleven attacks and the it was to detain people every one of the individuals detained and it was in violation of immigration status right that's correct and it was due to detain those individuals until they were properly cleared and could be could be released now you may disagree with that approach to the policy but what concerns me and why the restraint is appropriate in the bivins context is that it is a way of challenging national policy through damages actions against the individuals implementing it and i think that is  security context of these detentions the type of determinations that were being made are determinations that are under suited for events because either they should be left to congress or they are outside of this court's core competence and i would submit that this is precisely the kind of  examination that is within this court's core competence i guess my point is is different and different one i understand the argument that there are constitutional violations but the question that you're asking the court to do is to shape a remedy for that a remedy that congress has not provided and to look at it in the simplest terms and it is been forty would every year since we adopted an approach to implied rights of action understand choose where we say of congress wants people to be allowed to bring individual damages actions they pretty much have to say so and it seems to me that it's the same approach here except of course you're dealing with the constitution and the idea that the court lacks the institutional competence and ok there's there's 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 shape the policy the national government response to nine eleven therefore you have to pay money because it's been a determination that was unconstitutional well it is certainly true that the court has stepped back from freely implying private causes of action but in every business defense case that has come before this court the court has still engaged in the two step in corrie looked to see whether there are special factors that should keep the court from staying its hand and waive the interest on the other side of the equation too and each time the court has every emphasized that defense is about terming individual federal officer misconduct now when and when when a federal official creates an unconstitutional policy creating policy but he is also acting as an individual to violate what in this case would have to be clearly established constitutional norms understand that that's the point made by your friend on the other side though over deterren when you have the attorney general the director of the f b i the director of ins sitting down and making what are we going to do to respond to this crisis and people in the world of old enough nine eleven sort of have a better sense of what that crisis was like and if you imply a behind your actions one of the things they're going to enter into their what is past what is appropriate and presumably also what's constitutional they're going to say well gosh if you know i'm wrong i'm going to i'm going to be sued not because i'm the attorney general but is in as an individual and i can i be part of the policy that we've announced is that we don't want people forming policy to have to worry about they're going to have to pay if they're if they're if the policy is found in for two responses to that mr chief justice 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 who do so believing their actions to be lawful even if they are mistaken there is already that incredibly substantial protection second i don't believe that it would be a threat to the republic to provide the attorney general with incentives to not create a 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 ask you one other thing which is has this been fully argued out below i mean i think it is enormously important and very open question and we can say on the one hand just what was said i think everything the chief justice said it's true there is a problem in us time of real national emergency to over deter people from doing what they reasonably think is necessary and they have the authority for security not the judges at the same time the law this court correctly i think is but there is no blank check even for the president and if there's no blank check that means sometimes they can go too far and if they have gone too far it is our job to say that there are considerable advantages as pointed out saying at the time they're going to say yes because there's a big frightening thing out of me but maybe they went too far too fast and then this offers a remedy later and maybe the deterrence is good ok you see both sides has that been fully argued in this case if i go and look in the record can i find a question that i have wondered about for quite a long time fully answered i don't believe so i i think the question you're posing is whether damages would actually be a l remedy in this situation allowing for an injunctive relief claim at the outset if i understand your current your question question in a set of cases and yes no i don't believe that that has been fully addressed below the circuit of course found that  no extension bivins was required so the circuit didn't 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 that even that would just that this case cannot be distinguished from paul but what distinguishes this case from paul is that we respondents have a factual allegation that the dujail petitioners policy was to target muslims and arabs for harsh treatment and that they imposed this treatment knowing there was no reason to suspect respondents of ties to terrorism now my friend argued that even if petitioners d o j petitioners had known that there was that had known that many were arrested without an articulable tied 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 don't believe that is a fair reading of the complaint or the i g report respondents allege in paragraph forty seven that petitioners receive detail daily reports of the arrests and the detentions and that they learned that the f b i had no basis to suspect respondents and the class of ties to terrorism there was no reason to think that completely you have to disprove courts look at this and say that we're not going to get relief there were some hideous petitions filed in general the government's response to those petitions being filed was to move the detainee up to the front of the list to clear him so that he could be removed from the country and from the restrictive conditions of confinement before a court could have the opportunity to rule on the legality of the detention and importantly those heaviest petitions were about the the right to detain these people in itself not about conditions of confinement it is still not clear today that one can use a petition to challenge conditions of confinement and it wasn't clear in the second circuit at the time either so while he was petitions were filed eventually when some detainees finally had access to counsel although restricted access those those petitions were not actually ruled on by a court the court no court had the opportunity to determine whether what was happening to the detainees was lawful or not and that was part of d o j petitioner's entire policy of harsh treatment it was not just to impose maximum pressure it was also as we allege in paragraph sixty one to keep the detainees from accessing the outside world now my friend argued that the petitioners cannot be on the hook for the substantive due process claim in this case which  claim that was was not presented in at all there was no conditions claimant at all just an equal protection claim because they did because the d o j petitioners did not set all the details of the restrictive conditions of confinement but the order itself paragraph sixty one requires keeping individuals in solitary confinement in isolation that is the way within the prison system people are kept from accessing the outside world it cannot be done in a general population unit so in order that requires solitary confinement for individuals whom are arrested in connection to the terrorism investigation but whom the attorney general and the other d o j 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 i believe about the merger of the new york list and the nationalist that it was not a situation where some of the men on that list perhaps hadn't been vetted rather the entire last three hundred men were people for whom the f b i had not stated any interest or lack of interest and it was this list of men who we allege attorney general ashcroft ordered should be treated as of interest to the nine eleven investigation if we if   there's there is there i was thinking with this group is this is the president and that in your point in the server yes what the circuit held as to that is that the question of whether officials can conspire with each other is so fact intensive and had been so conclusively briefed in the district court that it was required to remain and back to the district to determine sort of how they might have conspired with each other whether what their positions were precedent in our favor for that what is so fact intensive about the argument is that government officials the government is the entity and officials within that same entity don't conspire among themselves they're just doing their doing their jobs well i think it depends on the role of the high level officials abuse of these low level officials at the metropolitan detention center certainly we argue that officials at such disparate levels of the federal government which is vast could could be held to have conspired with each other but i don't think it is an argument that was fully developed before the district court and that was what the circuit held and that's why it should be remanded to the circuit and about not extending bevins for the claims against those officials is very different from the argument by the d o j petitioners every judge who has considered the issue has agreed that the claims that hasty and sherman words liberally indifferent to months of physical and verbal abuse arise in a familiar bivins context and should be allowed to go forward earlston versus green apologize yes the deliberate indifference can claim goes forward against hasty and then there were the claims against hasty and sherman for the official conditions of confinement at the metropolitan detention center these are claims that the men were held in solitary confinement for months deprived of sleep deprived of exercise this is not just the m d c petitioners in following the orders from their superiors in the bureau prisons they created the actual conditions of confinement there is nothing in the record to suggest that the p o p ordered that all of the conditions that respondents were subjected to lights on in their cells twenty four hours a day while they were in solitary confinement that the solitary confinement continued without any individual lives review there is no i won't read that were they cost were those conditions constitutional as to individuals about whom the f b i had reasonable suspicion of a connection to terrorism that would depend placement in solitary confinement if it is incredibly prolonged and incredibly restrictive maybe unconstitutional incredibly important point that i want to make sure to get out which is that we disagree with the m d c petitioners statement that there was a terrorism designation here that there was reason to believe that any of the nine eleven and 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 in well that is the show as i understand it the way it was presented today was that the was relying on and that's in paragraph seventy eight seventy one through seventy four of our complaint that actually liaison to the headquarters investigation was providing the m d c with information about all the men and all the information if you think that the f b i in a sense investigation of something sensitive like this about terrorism would necessarily have told people in d c every bit of information they had connecting people with with terrorism well our factual allegation is that they were told all the information that was relevant to the threat that the men posed to the institution and also important here is what the o i g has explained about the meaning of the of the of interest designation being determined by the f b i to be of interest to the nine eleven investigation meant only that they were not not of interest this is not just something that was happening in new york the o a g quotes the head of the national security unit of the asked who explains that if the f b i could not state whether or not it had an interest in the vigil that individual was held as of interest the nine eleven investigation so even if there is word being sent out that you know these men are of interest to the investigation we have to be careful with them what the m t c petitioners received was that of interest as a nation which meant very little based on the policy being applied here and then they received the detailed information for example that khalifa was arrested was encountered by the f b i in the context of the nine eleven investigation had violated the immigration law and that  might be interested in him this is the actual information that was provided that we have made available in the complaint f b i goes into a rooming house after having information there's 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 to them no you can't do it because we don't know there are people who are they know nothing about them actually that we know nothing about them all we know is they're in the rooming house and we also know there was a there were up and that isn't totally parent who did happen and  so what are they supposed to do and how well we don't challenge the fact that these men were detained at all and we don't challenge that they were investigated while they were detained so even if they had been detained you know some of them were up to eight months which is a long period of time and there's no challenge to that detention in this case the challenge is to the way they were treated while they were detained that if you need to investigate after a national security emergency there are a lot of tools at the government's disposal to do so what you cannot do is single out a group of people who knew no there is no basis to suspect them of any ties to terrorism beyond sharing racial and religious characteristics with the nine eleven hijackers and decide that that group of people poses such a threat that they must be placed in the most restrictive conditions of confinement that exists in the federal system while we take the time eight months up to eight months to determine whether there actually is any basis to suspect them of anything other than an immigration violation and at the end of the day oh actually there wasn't everybody was cleared and deported as one would expect from a policy that is not based on investigating based  actual suspicion but is rather a blunderbuss attempt to gather all of the muslim and arab citizens whom one has authority over by virtue of their immigration to tensions and hold them in restrictive conditions of confinement while they are treated as suspected terrorists if i could get back for a moment to one of the questions and that's about whether bivins is appropriate for altering policy i don't know if i was able to get this point out as well as i'd like to before too to explain that i don't think that there is really any precedent for the idea that you can't use ivins to deter creation of a clearly unconstitutional policy and if if the court did rule in that way what would there be to deter the creation of unconstitutional policies in the future now of course policies can be stopped as they are ongoing but that does not protect the individual against whom you know potential serious law enforcement action has been taken well i suppose one answer would be the normal injunctive action would challenge the constitutionality of the policy which would seem at least at first blush to be a more appropriate we're doing it than to individual damages actions against officials responsible  claim while it could stop currently current unconstitutional conduct cannot deter future unconstitutional conduct from occurring it doesn't deter the future attorney general from creating an unconstitutional policy and if national security policy is somehow insulated from judicial review without even a determination that this is the type of national security policy where we could expect there could be there should be sensitive judgments made if in that situation there is no givens remedy then there are times when the court will play no will be able to play no role in reviewing what has occurred because the individual simply can't get into court fast enough maybe in a situation like this they're denied from getting into court for a period of time and then when they finally do claim that the way that they've been treated is stopped you know they're released someone else is picked up instead there never a chance to actually undertake judicial analysis of what has been occurring if 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 there is no cause of  action at all if individuals who are the subject of clearly unconstitutional national security policy don't even have the opportunity to get into the court then there is nothing to deter even more excessive exercises of government power in the future 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's not in the complaint the date of list murder decision the reports suggest it was on november second and then just justice ginsburg you had asked about the warden visits j page two twenty four it says on september twentieth two thousand and one various words including m d c warden sank reestablished legal visits legal telephone calls and legal mail for the september eleventh detainees i'd like to make litigated that that was september twentieth two thousand and one and that's on page two twenty four of the joint appendix three points on the law first if this would be a massive extension of bivins molest go said justice kennedy you would ask that unlike a bivins remedy which we have never considered a proper vehicle for altering an entity's 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 promulgated a policy that's later found unconstitutional could be liable personally to all the banks for the unconstitutional policy bivins is not justice brian absence of business is not lawlessness it is not a blank check and there is it is incorrect as to say that there is no way to get into court the way to get into court to challenge a policy is through an a p a it's through injunctive relief and although my friend on the other side suggest that it damages remedy is not a threat to the republican or is there less intrusive remedy that's exactly the the the judgment that this court is ill equipped to to make and that congress should make with respect  officials within a corporate unit could could conspire with each other there's case law suggesting they couldn't and it was unclear specifically in the second circuit whether one thousand nine hundred five three applied at all to federal officials so qualified immunity would eliminate the hundred five three claim and then if i could close with the the if paul pleading and what we're talking about here the other side is made clear they're not talking about the initial treatment and they're not even talking about the length of time they're talking about the conditions of confinement and the fact that conditions that could lawfully be unposed imposed with people in individual i suspicion were imposed on a much broader group but i submit that that ignores the perspective that the attorney general even assuming that he was the person who made the policy decision which for as judge reggie suggested we should not assume just one point and one nine hundred eighty five the fact that it wasn't clear that there was a remedy under nine hundred eighty five it doesn't fit all that it wasn't clear that there wasn't a right that was being violent so different with respect to the interim agency conspiracy i think that suggests even the right wasn't invited and if the statute doesn't it's not clear the statute applies at all to them would you think that's a situation in which qualified immunity would attach but just to close w with what the attorney general knew the attorney general knew that he had aliens who were legally detained as out of status and had been arrested in connection with pent bomb that restrictive conditions of confinement not the unlawful the unofficial conditions which have no connection to my clients but the restrictive conditions of confinement were ok for some with individual i suspicion but he had no way to know which ones were and which ones were not subject to that condition in that situation he made the decision to subject the whole group to hold until cleared policy so they could figure it out the idea that because in two thousand and twenty signed site we can identify the particular individuals who were not had not who were not connected at all to terrorism and thus were wrongly detained does not change the reasonable of his job his judgment the fact you can't infer punitive intent in discriminatory content and the intent and the fact that it was not clearly established that the list merger decision which is what a core of what the second circuit decided that the lismore decision was unconstitutional when  if there are no further questions thank you counsel general gershon gorn before you leave the podium i'd like to note that the court thanks you for your service to the court as acting solicitor general over the past many months thank you the case is submitted