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 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 9 11 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 ball pleading theory, but given this court a admonition that the existence of the bivins remedy is an antecedent question that the court should request first. Let me start there. You seem to be assuming that the whole case is about the merging of the new york list with the other list, but i thought that this was this case was identified as a prison conditions case. So, your honor, that broader theory was raised below, and it was rejected by every judge to the District Court and the panel majority, and it is also, i think, not within the scope of the question presented, but even and i think the reason that it was barred below is because its squarely foreclosed by it ball both on the due process claim and the equal process claim. On the substantive due process claim is we have a facially valid constitutional policy to that could be applied to individuals with individualized suspicion of terrorism and if you look at the allegations of the complaint and these are paragraph 64 and 65 of the complaint, all that is allege side that ashkroft and mueller this is on page 274a of the appendix to the petition and this is paragraph 61 that ashcroft and mueller met with a small group of officials to exert maximum pressure the individuals arrested and in paragraph 65 on the next page, that the punitive conditions in which the class members were placed were the direct result of the strategy. There is no allegation that ashcroft and mueller or zigler created the punitive conditions or that they required the punitive conditions. They had the right as the Second Circuit itself held and the District Court held to presume that the policy would be implemented lawfully. The only real theory that survives, i think, your honor is the list merger theory and that theory fails. I think its critical to happened in that context how the case, how the situation looked to the attorney general to attorney general ashcroft who was alleged to be the decisionmaker. Ill come back to the failure of the complaint to allege that he was the decision maker, but even taking that, what he faced was a new york list which involved aliens, all of whom were out of status and had been picked up in the course of the bomb investigation. He knew that not all of those aliens had had individualized suspicion determinations, but that some may have had ties and nexis to terrorism and he knew the confinement would be lawful. It was want disputed that those would be lawful with those with individualized suspicion. Faced with that decision, the Second Circuit found the list merger decision could be by punitive intent or discriminatory intent, but there is an obvious alternative explanation for the decision that attorney general ashcroft would have faced in deciding the mergers to list s that you couldnt tell who was and who was not who did any wd who d not have a potential link to terrorism and therefore a decision to hold everyone until cleared, to apply the hold until cleared policy is best explained not by invidious intent, but the desire to avoid the premature and inadvertent release of terrorists. That went on for several months. Eight months. I think the list merger decision went on yes, but werent they held for eight months . They were held longer and there was no i can understand after a bomb attack. I can understand after a bomb attack and 3,000 people are killed. I can understand that the first reaction of the Law Enforcement authorities is pick up anybody who might think is connected and well worry about the rest of it later. Now, eight months . What they do allege is that ash rost and mueller had not developed any reliable evidence, paragraph 67, tying their evidence to terrorism and mueller, it says, ordered that they be kept in ins custody and including the restricted conditions and even after officers reported and they dont say reported to whom and that is a point in your favor, but that there was no reason to suspect them of terrorism, but i think fairly read, theyre saying they okay. 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, thats worrying me a lot and why doesnt that at least state an allegation . Suppose it had been five years . Suppose it had been ten years . We all know the problem with that, and 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 and so forth . Because i think the core of the allegation against ashcroft and muler is not that they prolonged the detention. The policy that they adopted in the list merger decision was facially constitutional because it it adequately dealt with the dilemma that they face . How long after 9 11 did they adopt that policy . I was i believe it was in the months before 9 11. How many months . I apologize is it more like eight months . No, your honor, i believe it was in october after the in october, after the after the after the attacks and so were not talking. This was not something that was done eight months down the road. This was something that was done as officials are trying to sort through how to respond to the very difficult situation that if you accept that the attorney general made the decision that he found himself in. He had a list that was not fully vetteded and some of those people may have had ties to terrorism and some of them may well not have, and what in that situation, application of the hold until cleared policy, take a breath. Lets figure out whats going on rather than releasing everyone is was not only doesnt raise a discriminatory inference, but it does not violate any clearly established right to have done that. What about the what about the its one thing as was prior pointed out to say that 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 what might have been justified in october to persist for months and months when these people are being held in the worst possible conditions of confinement. Your honor, they are being held in restrictive of confinement, but those conditions are lawful as to folks with individualized suspicion. Now 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 restrictive conditions in the first place, and what i would say to that is it attempts to impose a 20 20 hindsight on the attorney general and director mueller and zigler who are involved as having, quote, condoned the policy that just doesnt exist. The plaintiffs say there were no allegations of terrorism ties against us, but of course, the attorney general didnt 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 wells and hold until clear was constitutional, and in some instances it took too long to clear and the oig report suggests that was the case that things did not run as smoothly as they should have. Thats not something thats attributable to attorney general ashcroft, director mueller and to commissioner zigler. Is the argument youre presenting a bivins argument or a qualified immunity argument . Your honor, the argument weve been discussing now is the qualified immunity it ball argument and we do know the bivins remedy should not be extended here at all and it would be quite an extension of bivins to apply this to National Security and 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 committeded to Congressional Authority that congress is based for appropriate remedy and the reason for that is not only the matter of institutional competence and the risk of overdeterrence in the National Security context is a real one and its one that congress should make, and thats, i think, the core of this courts decision in slappel and chappel stanley. Congress has provided a remedy to challenge policy decisions in the apa, and in addition to that, policy decisions are much more likely to receive attention as this set of policy decisions did from the oig and from congress itself. And so the apa argument strikes me as somewhat odd. The idea that the people in prison are supposed to say, lets look at the administrative procedures act. What about habeas. Is th is that an available remedy for them . It is an available remedy, and it was invoked by some and those folks were released and it does because the core of the complaint was youre holding us without bond. We should be essentially deported for the illegal remedies, and i do think the availability of habeas here, and i take your honors admonition about oddity of the apa here, but if the apa doesnt apply here is because congress provided it for policies and provided review for some policies and not for all policies and that is the congressional judgment, and that is the core how could they have access to habeas when they were locked up without access to a lawyer and without access to a telephone . Your honor, there were individuals who did file habeas petitions and and those individuals were largely released before the claims could be adjudicated, but the point here is that the enxtension of bivins would be quite extraordinary to the policy con text and the immigration concerns do raise the exact same concerns as the National Security one. I suppose that in 1942, was there a president or a secretary of defense who decided lets take 140,000 people, 60,000, 70,000 citizens and 60,000 noncitizens and lock them up for ten years or five years or four years. You go with habeas, right . At the time, you can understand how in january of 1942 it would be pretty tough for a judge in a District Court to start second guessing people, but several years later people had 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 bivins remedy, and say, one, it has a cautionary effect. It doesnt deter were it necessary, and then where a big mistake was made, it has the possibility of compensation later. Thats the whole argument. Beware of cutting off bivins, you never know what will happen. Your honor, i guess i will say a few things to that. First of all, i recognize your honor as not no, not at all. I use it as a historic example and im not worried about this case. Its in the context of the specific investigation. Even with respect to your honor, i think it points out the problem to extending bivins to the National Security policy decisions and to policy decisions in general. It should not be in the National Security policy context that this court should be calibrating the deterrence, and overdeterrence 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 cant 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 personally on the hook for the whole class. The secretary of the treasury whats the best authority you have for saying that assuming there is a bivins action, it has to be cut off at the lower level of officials. What authority do we have . Its not the highest level of officials, your honor, and its when there is a Broad National policy that the policy decisions is not through bivins. Its ordinarily through an injunctive action if i could reserve the balance of my time. Thank you, general. Mr. Lamkin . Thank you, mr. Chief justices and may it please the court, i want to begin with qualified immunity in particular with respect to the official 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 produce. A reasonable jailer could have understood and believed it lawful in the circumstances of this case to do as the bop directed them which is to hold detainees in restricted conditions based on those who determined the level of restriction . This is not a restriction. Your honor, the honor is that the bop directed that you would use the most restrictive conditions permissible, the specific implementation was left to mr. Hasty and sherman, but there is no allegation that there was unconstitutional conduct based on what the difference between the bop directed and what mr. Hastings and sherman did. The allegation here is that it was impermissible to reduce the highly restricted conditions because the fbi didnt actually have information connecting these individuals to terrorism and as he somehow knew that and it was impermissible to impose the conditions on these respondents, but that doesnt make any sense from a plausiblity perspective. Mr. Hasty and sherman are jailers. They are not trained in determining security classifications or connections to international terrorism. They cannot be held liable for failing to overturn the fbis determinations. After all, just last week this court held that theres no clearly established law that requires an officer to overturn or second guess the fellow officers decisions made in particular context. That should go double when asked by the determinations made by the fbi. The jailers dont get to decide what about all of the conduct that was not directed by the attorney general . Or the fbi. Yes, your honor. Youre referring to the unofficial conditions or the unauthorized abuses by individual guards. Am i right that as to those the Second Circuit was unanimous. As to those the Second Circuit was unanimous and they overlooked one critical thing and there were a lot of things wrong and they shouldnt be addressed by the courts and its not. This is an action for individual damages against mr. Hasty for conduct committed by others and in order to establish applausible claim to relief, it would have to show that mr. Hasting not only knew that there was misconduct and not only knew that he needed to intervene and after he failed to intervene, then the plaintiffs were being injured as a result of the failure to intervene, but their injuries were caused by mr. Hasty failed to do and whats missing from the Second Circuit analysis and thats whats missing from the complaint. Theres no connection whatsoever between the proposed youre in charge of the detention facility and all of these things are going on and your arms are being twrifted and are they having some complaints and nothing is done. It continues to go on. The allegation is that he deliberately did not take a routine inspection of of that particular portion of the prison in order to be willfully blind. Theres no doubt that misconduct occurred and no doubt that mr. Hasty actually sees the complaints because thats part of the grievance process, but whats missing from this is these individual plaintiffs are being brought to his attention, and if you review the complaint it doesnt have a moment where he says this is what he learned and after that we were injured. Its more of a blunder because there are a lot of bad things happening and mr. Hasty must be liable. How could it be when this is ongoing behavior . I think the answer is that you pinpoint his awareness in the injuries that these respondents are claiming damages for. You say it in paragraph 74, it says, indeed, after a few months of interacting with the plaintiffs the mdc defendants, i take it those are the people were talking about, realize that they were not terrorists, that merely immigration detainees, yet the restrictive conditions and harsh treatment continued, so what is that, but an allegation that they did know it and they did continue the harsh treatment . Justice breyer, referring specifically to the unofficial abuses by the guard as opposed to the official conditions, temporarily, whats missing there is what happened afterwardses . What were the specific abuses he was aware of . Is it misconduct or tapping the bars at night and keeping people awake . It is the restrictive conditions and harsh treatment to think they have a list. And thats exactly the treatment, and therefore he must be liable for the harsh treatment after that awareness. You cannot say that there are abuses generally with no particular timeframe and hold him liable for every intentional tort that occurs in the institution. I think paragraph 74 and 77 which the Second Circuit described at details actually illustrate precisely the problem and they dont say which abuse hes aware of whether he predates or post dates what they have and mr. Hasty is personally responsible. In fact, when they finally get to a date which is paragraph 110 of the complaint and february 11, 2002. By february 14, 2002 four of the six respondents are outside of admax. They never explain why awareness after their institution is a basis for holding mr. Hasty liable. If i could go back to the official conditions, your honor, with respect to the official conditions, qualified immunity must be granted and theres no basis for saying that every reasonable jailer would understand that they had to make their determination and overturn what t