Lead Opinion
On September 11, 2001, “19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda” hijacked four airplanes and killed over 3,000 people on American soil. Ashcroft v. Iqbal (Iqbal),
The operative complaint, a putative class action, asserts various claims against former Attorney General John Ashcroft; former Director of the Federal Bureau of Investigation (the “FBI”) Robert Mueller; former Commissioner of the Immigration and Naturalization Service (the “INS”) James Ziglar; former MDC Warden Dennis Hasty; former MDC Warden Michael Zenk; and former MDC Associate Warden James Sherman.
BACKGROUND
I. Procedural History
Plaintiffs initiated this action over thirteen years ago on April 17, Over the following two and one-half years, Plaintiffs amended their complaint three times. In June 2006, following a series of motions to
Two significant, events occurred while the appeal was pending. First, six of the original eight named Plaintiffs at that time withdrew or settled their claims against the government. See Turkmen II,
On remand, the district court permitted Plaintiffs to amend their complaint and granted leave for six additional Plaintiffs, all of whom had been held at the MDC, to intervene. The eight current named Plaintiffs are of Middle Eastern, North African, or South Asian origin; six of them are Muslim, one is Hindu, and one is Buddhist. The Fourth Amended Complaint (the “Complaint”), the operative complaint in this case, restates Plaintiffs’ putative class claims on behalf of the “9/11 detainees,” a class of similarly situated non-citizens who are Arab or Muslim, or were perceived by Defendants as Arab or Muslim, and were arrested and detained in response to the 9/11 attacks.
The Complaint dramatically winnowed the relevant claims and defendants; it alleges seven claims against eight defendants. The first six claims, all brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
II. The OIG Reports
Plaintiffs supplemented the factual allegations in their amended complaints with
The OIG reports, which the Complaint “incorporate^] by reference except where contradicted by the allegations of [the Complaint],” Compl. ¶8 n.l, see also id. ¶ 5 n. 2, play a significant role in this case.
III. Plaintiffs’ Allegations
In the aftermath of the 9/11 attacks, the FBI and other agencies within the DOJ immediately initiated an immense investigation aimed at identifying the 9/11 perpetrators and preventing any further attacks. See OIG Report at 1, 11-12. PENTT-BOM, the Pentagon/Twin Towers Bombings investigation, was initially run out of the FBI’s field offices, but shortly thereafter, Mueller ordered that management of the investigation be switched to the FBI’s Strategic Information and Operations Center (the “SIOC”) at FBI Headquarters in Washington, D.C. Mueller personally directed PENTTBOM from the SIOC and remained in daily contact with FBI field offices.
In conjunction with PENTTBOM, the Deputy Attorney General’s Office (the “DAG’s Office”) established the SIOC Working Group to coordinate “efforts among the various components within the [DOJ] that had an investigative interest in[,] or responsibility for[,] the September
Given that the 9/11 hijackers were all foreign nationals, the DOJ response carried a major immigration law component. See id. at 12. Ashcroft and Mueller developed “a policy whereby any Muslim or Arab man encountered during the investigation of a tip received in the 9/11 terrorism investigation ... and discovered to be a non-citizen who had violated the terms of his visa, was arrested.” Compl. ¶ 1; see also id. ¶¶ 39^9. Ashcroft also created the related “hold-until-eleared” policy, which mandated that individuals arrested in the wake of 9/11 not be released from “custody until [FBI Headquarters] affirmatively cleared them of terrorist ties.” Id. ¶ 2; see also OIG Report at 38-39.
Within a week of 9/11, the FBI had received approximately 96,000 tips from civilians across the country. These tips varied significantly in quality and reliability.
In the months following 9/11, the DOJ Defendants “received detailed daily reports of the arrests and detentions.” Id. ¶ 47. Ashcroft and Mueller also “met regularly with a small group of government officials in Washington, D.C., and mapped out.ways to exert maximum pressure on the individuals arrested in connection with the terrorism investigation.” Id. ¶ 61.
Plaintiffs, with the exception of Turk-men and Sachdeva, were held at the MDC. Under MDC confinement policy, the 9/11 detainees placed in the MDC were held in the MDC’s Administrative Maximum Special Housing Unit (the “ADMAX SHU”)— “a particularly restrictive type of SHU not found in most [Bureau of Prisons (‘BOP’) ] facilities because the normal SHU is usually sufficient for correcting inmate misbehavior and addressing security concerns.” Id. ¶ 76. The confinement policy was created by the MDC Defendants “in consultation with the FBI.” Id. ¶ 65.
Conditions in the ADMAX SHU were severe and began to receive media attention soon after detentions began. See OIG Report at 2, 5. Detainees were: “placed in tiny cells for over 23 hours a day,” Compl. ¶ 5; “strip-searched every time they were removed from or returned to their cell[s], ... even when they had no conceivable opportunity to obtain contraband,” id. ¶ 112; provided with “meager and barely edible” food, id. ¶ 128; denied sleep by “bright lights” that were left on in their cells for 24 hours a day, id. ¶ 119, and, “[o]n some occasions, correctional officers walked by every 20 minutes throughout' the night, kicked the doors to wake up the detainees, and yelled” highly degrading and offensive comments, id. ¶ 120; constructively denied recreation and exposed to the elements, see id. ¶¶ 122-23; “denied access to basic hygiene items like toilet paper, soap, towels, toothpaste, [and] eating utensils,” id. ¶ 130; and prohibited from moving around the unit, using the telephone freely, using the commissary, or accessing MDC handbooks, which explained how to file complaints about mistreatment, see id. ¶¶ 76, 83,129,140.
MDC staff also subjected the 9/11 detainees to frequent physical and verbal abuse. The abuse included slamming the 9/11 detainees into walls; bending or twisting their arms, hands, wrists, and fingers; lifting them off the ground by their arms; pulling on their arms and handcuffs; stepping on their leg restraints; restraining them with handcuffs and/or shackles even while in their cells; and handling them in other rough and inappropriate ways. See id. ¶ 105; see also Supplemental OIG Report at 8-28. MDC staff also referred to the 9/11 detainees as “ ‘terrorists,’ and other offensive names; threaten[ed] them with violence; cursfed] at them; insult[ed] their religion; and ma[de] humiliating sexual comments during strip-searches.” Compl. ¶ 109. Specifically, Plaintiffs and putative class members at the MDC were referred to by staff as “camel[s],” “fucking Muslims,” and “Arabic asshole[s],” id. ¶¶ 110,147, 218.
The MDC Plaintiffs did not receive copies of the Koran for weeks or months after requesting them, and one Plaintiff never received a copy, “pursuant to a written MDC policy ... that prohibited the 9/11 detainees from keeping anything, including a Koran, in their cell[s].” Id. ¶ 132. The MDC Plaintiffs were also “denied the Halal food required by their Muslim faith.” Id. ¶ 133. And “MDC staff frequently interrupted Plaintiffs’ and class members’ prayers,” including “by banging on cell doors,” yelling derogatory comments, and mocking the detainees while they prayed. Id. ¶ 136.
The named MDC Plaintiffs’ individual experiences — several of which are highlighted below — add further texture to their collective allegations concerning the arrest and confinement of the 9/11 detainees.
A. Anser Mehmood
Mehmood, a citizen of Pakistan and devout Muslim, entered the United States on
On the morning of October 3, 2001, Meh-mood was asleep with Uzma and their one-year-old son when FBI and INS agents knocked on his door. The agents searched Mehmood’s home and asked whether he-“was involved -with a jihad.” Id. ¶ 157. Mehmood admitted that he had overstayed his visa. The FBI informed Mehmood that they were not interested in him; they had come to arrest his wife Uzma, whose name the FBI had encountered when investigating Plaintiff Ahmer Abbasi, her brother. Mehmood convinced the FBI to arrest him instead of Uzma because their son was still breastfeeding. “The Agent told Mehmood that they had no choice but to arrest one of the parents, but that Meh-mood faced a minor immigration violation only, and he would be out on bail within days.” Id. ¶ 159.
Upon his arrival at the MDC, Mehmood “was dragged from the van by several large correctional officers, who threw him into several walls on his way into the facility.” Id. ¶ 162. “His left hand was broken during this incident” and “[t]he guards threatened to kill him if he asked any questions.” Id. His experience in the ADMAX SHU tracked that of other 9/11 detainees. For instance, “[wjhenever Mehmood was removed from his cell, he was placed in handcuffs, chains, and shackles. Four or more MDC staff members typically escorted him to his destination, frequently inflicting unnecessary pain along the way, for example, by banging him into the wall, dragging him, carrying him, and stepping on his shackles and pushing .his face into the wall.” Id. ¶ 166. Neither the FBI nor INS interviewed Mehmood following his arrest. Mehmood was not released from the ADMAX SHU until February 6, 2002.
B. Ahmed Khalifa
Khalifa, who had completed five years toward a medical degree at the University of Alexandria in Egypt, came to the United States on a student visa in July 2001. He came to the FBI’s attention after the FBI received a tip that “several Arabs who lived at Khalifa’s address were renting a post-office box, and possibly sending out large quantities of money.” Id. ¶ 195. On September 30, 2001, FBI, INS, and officers from the New York City Police Department came to the apartment Khalifa shared with several Egyptian friends. The officers searched his wallet and apparently became “very interested in a list of phone numbers of friends in Egypt.” Id. ¶ 196. After searching the apartment, the agents asked Khalifa for his passport and “if he had anything to do with September 11.” Id. ¶ 197. One FBI agent told Khali-fa that they were only interested in three of his roommates, but another agent said they also needed Khalifa, whom they arrested for “working without authorization.” Id.
On October 1, 2001, after briefly stopping at a local INS detention facility to complete paperwork, Khalifa and his roommates were transported to the MDC. When he arrived at the MDC, Khalifa “was slammed into the wall,' pushed and kicked by MDC officers and placed into a wet cell, with a mattress on the floor.” Id. ¶ 201. “[His] wrists were cut and bruised from his handcuffs, and he was worried
FBI and INS agents interviewed Khalifa on October 7, 2001. One of the agents apologized to Khalifa after noticing the bruises on his wrists. When Khalifa stated that MDC guards were abusing him, the agents “stated it was because he was Muslim.” Id. ¶202. In notes from the interview, the agents did not question Khalifa’s credibility, and noted no suspicion of ties to terrorism or interest in him in connection with PENTTBOM.
Following the interview, MDC guards strip searched Khalifa and “laughed when they made him bend over and spread his buttocks.” Id. ¶ 203. Khalifa complains of the conditions associated with detention in the ADMAX SHU, including arbitrary and abusive strip searches, sleep deprivation, constructive denial of recreational activities and hygiene items, and deprivation of food and medical attention.
By November 5, 2001, the New York FBI field office affirmatively cleared Khal-ifa of any ties to terrorism and sent his name to FBI Headquarters for final clearance. Khalifa was not officially cleared until December 19, 2001. He remained confined in the ADMAX SHU until mid-January 2002.
C. Purna Raj Bajracharya
Bajracharya is neither Muslim nor Arab. He is a Buddhist and native of Nepal who entered the United States on a three-month business visa in 1996. After overstaying his visa, Bajracharya remained in Queens, New York, for five years, working various odd jobs to send money home to his wife and sons in Nepal. Having planned to return home in the fall or winter of 2001, Bajracharya used a video camera to capture the streets he had come to know in New York. He came to the FBI’s attention on October 25, 2001, when a Queens County District Attorney’s Office employee “observed an ‘[A]rab male’ videotaping outside a Queens[ ] office building that contained the Queens County District Attorney[’s] Office and a New York FBI office.” Id. ¶ 230. When approached by investigators from the District Attorney’s Office, Bajracharya tried to explain that he was a tourist. The investigators took him inside the building and interrogated him for five hours. FBI and INS agents arrived at some point during the interrogation. Bajracharya subsequently took the agents to his apartment; provided them with his identification documents, which established his country of origin; and admitted to overstaying his visa.
Apparently due to the videotaping, Baj-racharya was designated as being of “special interest” to the FBI and on October 27, 2001, he was transported to the MDC. Id. ¶¶ 233-34. On October 30, 2001, the FBI agent assigned to Bajracharya’s case, along with other law enforcement personnel, interviewed him with the aid of an interpreter. During the interview, “Baj-racharya was asked whether he was Muslim or knew any Muslims.” Id. ¶235. Bajracharya explained that he was not Muslim and knew no Muslims. The FBI agent’s notes from the interview do not question Bajracharya’s credibility or express any suspicion of ties to terrorism. Two days later, the same agent affirmatively cleared Bajracharya of any link to terrorism. By November 5, 2001, the New York FBI field office completed its investigation and forwarded Bajracharya’s case to FBI Headquarters for final clearance. Documents at FBI Headquarters note that the FBI had no interest in Bajracharya by mid-November 2001. Nonetheless, he was not released from the ADMAX SHU until January 13, 2002. The FBI agent assigned to Bajracharya’s case did not un
Bajracharya, who is 5'3" and weighed about 130 pounds at the time of his arrest, complains of the same conditions common to the other MDC Plaintiffs. For instance, he could not sleep due to the light in his cell, and when he was removed from his cell, he would be placed in handcuffs, chains, and shackles and escorted by four or more MDC staff members. Bajrachar-ya became so traumatized by his experience in the ADMAX SHU that he wept constantly. When an attorney requested that the MDC transfer Bajracharya to general population, an MDC “doctor responded that Bajracharya was crying too much, and would cause a riot.” Id. ¶ 241.
IV. The New York List and the “Of Interest” Designation
As originally articulated by Ashcroft, following 9/11, the DOJ sought to prevent future terrorism by arresting and detaining those people who “have been identified as persons who participate in, or lend support to, terrorist activities.” OIG Report at 12 (internal quotation marks omitted). To that end, Michael Pearson, who was then INS Executive Associate Commissioner for Field Operations, issued a series of Operational Orders, which addressed the responsibilities of INS agents operating with the FBI to investigate leads on illegal aliens. A September 22, 2001 order instructed agents to “exercise sound judgment” and to limit arrests to those aliens in whom the FBI had an “interest” and discouraged arrest in cases that were “clearly of no interest in furthering the investigation of the terrorist attacks of September 11th.” Id. at 45 (internal quotation marks omitted). The “of interest” designation by an FBI agent had significant implications for a detainee. “Of interest” detainees were placed on the INS List, subject to the hold-until-eleared policy, and required FBI clearance of any connection to terrorism before' they could be released or removed from the United States. Detainees who were not designated “of interest” to the FBI’s PENTTBOM investigation were not placed on the INS List, did not require clearance by the FBI, and could be processed according to normal INS procedures. Id. at 40.
The arrest and detention mandate was not uniformly implemented throughout the country. Specifically, the New York FBI investigated all PENTTBOM leads without vetting the initial tip and designated as “of interest” “anyone picked up on a PENTT-BOM lead ... regardless of the strength of the evidence or the origin of the lead.” Id. at 41; see also Compl. ¶¶ 43-45. For instance, days after 9/11, New York City police stopped three Middle Eastern men in Manhattan on a traffic violation and found plans to a public school in the car. The next day, their employer confirmed that the men had the plans because they were performing construction work on the school. Nonetheless, the men were arrested and detained. See OIG Report at 42. In another instance, a Middle Eastern man was arrested for illegally crossing into the United States from Canada over a week before 9/11. After the attacks, the man was placed on New York’s “ ‘special interest’ list even though a document in his file, dated September 26, 2001, stated that FBI New York had no knowledge of the basis for his detention.” Id. at 64 (internal quotation marks omitted).
In many eases, the New York FBI did not even attempt to determine whether the alien was linked to terrorism, see id. at 14,
At some point in October 2001, INS representatives to the SIOC Working Group learned that the New York FBI was maintaining a separate list (the “New York List”) of detainees who had not been included in the national INS List. One explanation for maintaining a separate New York List was that the New York FBI could not determine if the detainees had any connection with terrorist activity. Id. at 54.
After INS Headquarters learned of the separate New York List, small groups of senior officials from the DAG’s Office, the FBI, and the INS convened on at least two occasions in October and November 2001 to suggest how to deal with the two separate lists of detainees. In discussing how to address the New York List, “officials at the INS, FBI, and [DOJ] raised concerns about, among other things, whether the aliens [on the New York- List] had any nexus to terrorism.” Id. at 53. Nonetheless, this list was merged with the INS List due to the concern that absent further investigation, “the FBI could unwittingly permit a dangerous individual to leave the United States.” Id. The decision to merge the lists ensured that some of the individuals on the New York List would remain detained in the challenged conditions of confinement as if there were some suspicion that those individuals were tied to terrorism, even though no such suspicion existed.
V. The Issues on Appeal
In a January 15, 2013 Memorandum and Order, the district court granted in part and denied in part Defendants’ motions to dismiss the Complaint. The district court dismissed all claims against the DOJ Defendants. As to the MDC Defendants, the district court denied their motions to dismiss Plaintiffs’ substantive due process conditions of confinement claim (Claim 1); equal protection conditions of confinement claim (Claim 2); free exercise claim (Claim 3); unreasonable strip search claim (Claim 6); and conspiracy claim under 42 U.S.C. § 1985(3) (Claim 7). See Turkmen III,
I. Pleading Standard
To satisfy Iqbal’s plausibility standard, Plaintiffs must “plead[] factual content that allows the court to draw the reasonable inference , that the defendant is liable for the misconduct alleged.”
Moreover, “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Well-pleaded factual allegations, in contrast, should be presumed true, and we must determine “whether they plausibly give rise to an entitlement to relief.” Id. at 679,
With the exception of the Section 1985 conspiracy claim, all of Plaintiffs’ claims allege constitutional violations based on injuries first recognized by the Supreme Court in Bivens,
II. Availability of a Bivens Remedy for Plaintiffs’ Claims
Unlike the MDC Defendants, none of the DOJ Defendants challenge the existence of a Bivens remedy in their briefs to this Court. While the DOJ Defendants did raise this issue below, and are represented by able counsel on appeal, they have chosen to not offer that argument now as a further defense of their victory in the district court. However, as the reader will later discover, our dissenting colleague makes much of this defense, raising it as her main objection to our resolution of the appeal. Given the MDC Defendants’ arguments, as well as the dissent’s decision to press the issue, legitimately noting that a district court’s judgment can be affirmed on any ground supported by the record, Dissenting Op., post at 225 n. 4 (citing Lotes Co. v. Hon Hai Precision Indus. Co.,
In Arar, we outlined a two-step process for determining whether a Bivens remedy is available. First, the court must determine whether the underlying claims extend Bivens into a “new context.” Id. at 572. If, and only if, the answer to this first step is yes, the court must then consider (a) “whether there is an alternative remedial scheme available to the plaintiff,” and, even' if there is not, (b) “whether special factors counsel hesitation in creating a Bivens remedy.” Id. (internal quotation marks and brackets omitted). As Arar noted, case law provides limited guidance regarding how to determine whether a claim presents a new context for Bivens purposes. Thus,' “[w]e construe[d] the word ‘context’ as it is commonly used in law: to reflect a potentially recurring scenario that has similar legal and factual components.” Id.
Determining the “context” of a claim can be tricky. The MDC Defendants contend that the context of Plaintiffs’ claims is the nation’s “response to an unprecedented terrorist attack.” Sherman Br. 45. The DOJ Defendants made a similar argument before the district court in an earlier round of this litigation. See Turkmen I,
Thus, we think it plain that the MDC Plaintiffs’ conditions of confinement claims are set in the following context: federal detainee Plaintiffs, housed in a federal facility, allege that individual federal officers subjected them to punitive conditions. This context takes account of both the rights injured (here, substantive due process and equal protection rights)
The Second Circuit has also recognized the availability of Bivens relief for federal prisoners housed in federal facilities bringing claims against individual federal officers. In Thomas v. Ashcroft,
Our sister circuits have also permitted Bivens claims for unconstitutional conditions of confinement. In Cale v. Johnson,
Notwithstanding the persuasive precedent suggesting the availability of a Bivens remedy for the MDC Plaintiffs’ conditions of confinement claims, the MDC Defendants, and our dissenting colleague, argue that the MDC Plaintiffs’ claims present a new Bivens context because the Plaintiffs are illegal aliens. But because the MDC Plaintiffs’ right to be free from punitive conditions of confinement is coextensive with that of a citizen, their unlawful presence in the United States at the time of the challenged confinement does not place their standard mistreatment claim into a new context. Indeed, the Fifth Circuit has recognized a Bivens claim raised by a Mexican national for violations of her Fourth and Fifth Amendment rights to be free from false imprisonment and the use of excessive force by law enforcement personnel. See Martinez-Aguero v. Gonzalez,
Our understanding of Bivens and this Court’s decision in Arar do not however suggest the availability of a Bivens remedy for the Plaintiffs’ free exercise claim. That claim — that Defendants deliberately interfered with Plaintiffs’ religious practices by: (1) denying them timely access to copies of the Koran; (2) denying them Halal food; and (3) failing to stop MDC staff from interfering with Plaintiffs’ prayers — does not fall within a familiar Bivens context. Here, it is the right injured— Plaintiffs’ free exercise right — and not the mechanism of injury that places Plaintiffs’ claims in a new Bivens context. Indeed, the Supreme Court has “not found an implied damages remedy under the Free Exercise Clause” and has “declined to extend Bivens to a claim sounding in the First Amendment.” Iqbal,
But the MDC Plaintiffs’ claim that they were subjected to unlawful strip searches falls within an established Bivens
Accordingly, we conclude that a Bivens remedy is available for Plaintiffs’ conditions of confinement claims, under both the Due Process and Equal Protection Clauses of the Fifth Amendment, and Fourth Amendment unreasonable and punitive strip searches claim.
III. Claim 1: Substantive Due Process Conditions of Confinement
The MDC Plaintiffs allege that the harsh conditions of confinement in the MDC violated their Fifth Amendment substantive due process rights and that all Defendants are liable for this harm.
A. Applicable Legal Standard
The Fifth Amendment’s Due Process Clause forbids subjecting pretrial detainees to punitive restrictions or conditions. See Bell v. Wolfish Wolfish),
B. The DOJ Defendants
While the DOJ Defendants do not raise a no-Bivens-d&im defense, they do forcefully contest liability here with powerful post-Iqbal assertions that “the former Attorney General and FBI Director did not themselves require or specify any of the particular conditions set forth in the complaint. And they cannot be held liable on what amounts to a theory of respondeat superior for the actions of others who may have imposed those conditions.” Ashcroft & Mueller Br. 10. They contend that because the former Attorney General’s initial detention order was constitutional, having been approved by the Supreme Court in Iqbal, the DOJ Defendants were “entitled to presume that the facially constitutional policy would in turn be implemented lawfully....” Id. at 9. We agree ... to a point.
The MDC Plaintiffs concede that the DOJ Defendants did not create the particular conditions in question. See Turkmen III,
The MDC Plaintiffs plausibly plead that the DOJ Defendants were aware that illegal aliens were being detained in punitive conditions of confinement in New York and further knew that there was no suggestion that those detainees were tied to terrorism except for the fact that they were, or were perceived to be, Arab or Muslim.
1. Punitive Conditions of Confinement
Contrary to the district court’s conclusion that Plaintiffs failed to “allege that the DOJ [Defendants were even aware of [the] conditions,” Turkmen III,
The OIG Report makes plain the plausibility of Plaintiffs’ allegations. The “[DOJ] was aware of the BOP’s decision to house the September 11 detainees in high-security sections in various BOP facilities.” OIG Report at 19. The Deputy Chief of Staff to Ashcroft told the OIG that an allegation of mistreatment was called to the Attorney General’s attention. Id. at 20. And BOP Director Kathy Hawk Sawyer stated that in the weeks following 9/11, the Deputy Attorney General’s Chief of Staff and the Principal Associate Deputy Attorney General “called her ... with concerns about detainees’ ability to communicate both with those outside the facility and with other inmates,” id. at 112, which she said confirmed for her that the decision to house detainees in the restrictive conditions of the ADMAX SHU was appropriate, id. at 112-113. This supports the reasonable inference that not only was Ashcroft’s office aware of some of the conditions imposed, but affirmatively supported them. See also id. at 113 (DOJ officials told Sawyer to “take [BOP] policies to their legal limit”).
Of course, we cannot say for certain that daily reports given to Ashcroft and Mueller detailed the conditions at the ADMAX SHU or that the daily meetings of the SIOC Working Group (containing representatives from each of the DOJ Defendants’ offices) discussed those conditions. But on review of a motion to dismiss, Plaintiffs need not prove their allegations; they must plausibly plead them. At a minimum, a steady stream of information regarding the challenged conditions flowed between the BOP and senior DOJ officials. Given the MDC Plaintiffs’ allegations, the media coverage of conditions at the MDC, and the DOJ Defendants’ announced central roles in PENTTBOM, it seems to us plausible that information concerning conditions at the MDC, which held eighty-four of the 9/11 detainees, reached the DOJ Defendants.
2. Lack of Individualized Suspicion
The MDC Plaintiffs also plausibly plead that the DOJ Defendants were aware that the FBI had not developed any connection between some of the detainees and terrorist activities. The Complaint and OIG Report both make clear that the New York FBI arrested all “out-of-status” aliens encountered — even coincidentally — in the course of investigating a PENTTBOM lead. OIG Report at 41-42, -69-70. These arrestees were “deemed ‘of interest’ for purposes of the ‘hold until cleared’ policy, regardless of the strength of the evidence or the origin of the lead.” Id. at 41. Those deemed of “high interest” were sent to the MDC’s ADMAX SHU, id. at 111, but “there was little consistency or precision to the process that resulted in detainees being labeled ‘high interest,’ ” id. at 158.
Once again, the OIG reports also support the MDC Plaintiffs’ allegation that the DOJ Defendants became aware of the lack of individualized suspicion for some detainees held in the challenged conditions of confinement. The OIG Report states that “[a] variety of INS, FBI, and [DOJ] officials who worked on the[] September 11 detainee cases told the OIG that it soon became evident that many of the people arrested during the PENTTBOM investigation might not have a nexus to terrorism.” OIG Report at 45. Other DOJ officials aiso stated that it “soon became clear” that only some of the detainees were of “genuine investigative interest”— as opposed to aliens identified by the FBI as “of interest” for whom the FBI had no suspicion of a connection to the attacks or terrorism in general. Id. at 47.
The OIG Report supports the reasonable inference that this information, known by other DOJ officials, came to the attention of the DOJ Defendants. In particular, the OIG Report specifies that Ashcroft and Mueller were involved in a “ ‘continuous meeting’ for the first few months” after 9/11, at which “the issue of holding aliens until they were cleared was discussed.” Id. at 39-40. Furthermore, the OIG Report makes clear that the SIOC Working Group, containing representatives from the offices of each of the DOJ Defendants, was aware of the lack of evidence tying detainees to terrorism. Id. at 53-57. As we have already noted, the OIG Report details how at some point in October 2001, the SIOC Working Group learned about the New York List and that “officials at the INS, FBI, and [DOJ] raised concerns about, among other things, whether the aliens had any nexus to terrorism.” Id. at 53. Clearly this created a major problem for the DOJ. The existence of the New York List suddenly presented the possibility of more than doubling the number of detainees subject to the hold-until-cleared policy.
3. The Decision to Merge the Lists
Plaintiffs plausibly plead that, despite the DOJ Defendants’ knowledge of the conditions at the ADMAX SHU and the lack of any form of verified suspicion for a large number of those detainees on the New York List, Ashcroft approved, or at least endorsed, a decision to merge the New York List. The MDC Plaintiffs contend that he did so notwithstanding vocal opposition from various internal sources. The Complaint clearly alleges that “[a]gainst significant internal criticism from INS agents and other federal employees involved in the sweeps, Ashcroft ordered that, despite a complete lack of any information or a statement of FBI interest, all such Plaintiffs and class members [on the New York List] be detained until cleared and ■ otherwise treated as ‘of interest.’ ” Compl. ¶ 47. By taking this action, Ashcroft ensured that some of the individuals on the New York List would be placed in, or remain detained in, the challenged conditions of confinement.
Our dissenting colleague levels a concern as to the import of the merger of the lists and counters that nothing in the OIG reports confirms Ashcroft’s personal knowledge of the correlation between the merger of the lists and the lack of individualized suspicion as to the MDC Plaintiffs. The dissent contends that, because Plaintiffs’ allegations are not based on personal knowledge, there is no factual basis in the record for them. Dissenting Op., post at 284. True enough that Ashcroft did not acknowledge that he was aware of the merger of the lists and its implication for the MDC Plaintiffs, nor did he take responsibility for it. But then again a review of the OIG Report gives no indication that anybody asked him.
The absence of an inquiry to the former Attorney General is not a criticism of the Office of the Inspector General’s methods, but a simple recognition of a fact that points out a key difference between our view of the OIG reports and that of the dissent. For us, the OIG reports provide context for the allegations of the Complaint. See supra note 6. However, it would be a mistake to think of the OIG reports as a repository of all relevant facts of that -troubled time; but that is exactly what the dissent seems inclined to do. The dissent measures plausibility by the absence or presence of fact-findings in the OIG reports. Thus, for the dissent, the fact that the Attorney General may not have been questioned is confirmation that he knew nothing. The reports make no such assertion.
It may be that following discovery it will be clear that Ashcroft was not responsible for the merger decision (nor was Mueller or Ziglar), but that is not the question at the pleading stage. The question is whether the MDC Plaintiffs plausibly plead that Ashcroft was responsible. Given the importance of the merger and its implications for how his lawful original order was being carried out, we think the MDC Plaintiffs plausibly allege that he was.
Indeed, the OIG Report supports the MDC Plaintiffs’ allegation that Ashcroft
Furthermore, in late November 2001, when the INS Chief of Staff approached Levey about the CIA check policy, Levey said that he “did not feel comfortable making the decision about [the] request to change the CIA check policy without additional input.” Id. at 62. It seems to us that if Levey was not comfortable changing the CIA check policy without input from more senior officials, he certainly would not have been comfortable making the decision on his own to double the number of detainees subject to that policy in the first instance.
The dissent argues that the OIG Report forecloses the plausibility of the allegation that Levey brought the list-merger decision to Ashcroft because “Levey made the lists-merger decision ‘[a]t the conclusion of the [November 2] meeting’ at which the subject was first raised to him.” Dissenting Op., post at 285 (quoting OIG Report at 56). But the OIG Report does not indicate that the merger issue was first raised to Levey at the November 2 meeting. Rather, the OIG Report makes clear that the issue of the New York List was discovered in October 2001,
The MDC Plaintiffs’ allegations against Mueller and Ziglar are also sufficient; The Complaint alleges, inter alia, that Ashcroft made the decision to merge the lists in spite of the lack of individualized suspicion linking the MDC Plaintiffs to terrorism and that “Mueller and Ziglar were fully informed of this decision, and complied with it.” Compl. ¶ 47; see also id. ¶¶ 55-57, 67. Mueller and Ziglar are not exculpated from this claim merely because Plaintiffs allege that they complied with, as opposed to ordered, the list merger. Plaintiffs plausibly plead that both were aware that the separate list contained detainees for whom the FBI had asserted no interest and that subjecting them to the challenged conditions would be facially unreasonable. Even if an official is not the source of a challenged policy, that official can be held personally liable for constitutional violations stemming from the execution of his superior’s orders if those orders are facially invalid or clearly illegal. See, e.g., Varrone v. Bilotti,
4. Punitive Intent
The MDC Plaintiffs must show not only that the DOJ Defendants knew of and approved continued use of the ADMAX SHU, but also that they did so with punitive intent — that they endorsed the use of those conditions with an intent to punish the MDC Plaintiffs. Federal courts have long recognized that punitive intent is not often admitted. The Supreme Court has noted that it can be inferred if the conditions of confinement are “not reasonably related to a legitimate goal.” Wolfish,
The DOJ Defendants argue that even if they knew of the plight of the MDC Plaintiffs, the decision to continue their confinement at the MDC under exceptionally harsh conditions was motivated by national security concerns — a legitimate worry during the days following the 9/11 attacks— and not some animus directed at the MDC Plaintiffs. ■ They seem to imply that once “national security” concerns become a reason for holding someone, there is no need to show a connection between those concerns and the captive other than that the captive shares common traits of the terrorist: illegal immigrant status and a perceived Arab or Muslim affiliation. Indeed,
This argument rests on' the assumption that if an individual was an out-of-status Arab or Muslim, and someone called the FBI for even the most absurd reason, that individual was considered a possible threat to national security. It presumes, in essence, that all out-of-status Arabs or Muslims were potential terrorists until proven otherwise. It is built on a perception of a race and faith that has no basis in fact. There was no legitimate governmental purpose in holding someone in the most restrictive conditions of confinement available simply because he happened to be— or, worse yet, appeared to be — Arab or Muslim.
To be clear, it is “no surprise”-— nor is it constitutionally problematic — that the enforcement of our immigration laws in the wake of 9/11 had a “disparate, incidental impact on Arab Muslims.” Iqbal,
While national security concerns could justify detaining those individuals with suspected ties to terrorism in these challenged conditions for the litany of reasons articulated by the dissent, see Dissenting Op., post at 292-93, those concerns do not justify detaining individuals solely on the basis of an immigration violation and their perceived race or religion- in those same conditions. Individualized suspicion is required here because, absent some indication that the detainees had a tie to terrorism, the restrictions or conditions of the ADMAX SHU were “arbitrary or purposeless.” Wolfish,
In view of the foregoing, we hold that the MDC Plaintiffs fail to plausibly plead a substantive due process claim against the DOJ Defendants coextensive with the entire posN9/ll investigation and reaching back to the time of Plaintiffs’ initial detention. ’Nonetheless, Plaintiffs’ well-pleaded allegations, in conjunction with the OIG Report’s documentation of events such as the New York List controversy, render plausible the claim that by the beginning of November 2001, Ashcroft knew of, and approved, the MDC Plaintiffs’ confinement under severe conditions, and that Mueller and Ziglar complied with Ashcroft’s order notwithstanding their knowledge that the government had no evidence linking the MDC Plaintiffs to terrorist activity. Discovery may ultimately prove otherwise, but for present purposes, the MDC Plaintiffs’ substantive due process claim — with the exception of the temporal limitation noted above — may proceed against the DOJ Defendants.
5. Qualified Immunity
A defendant is entitled to qualified .immunity if he can establish (1) that the complaint fails to plausibly plead that the defendant personally violated the plaintiffs constitutional rights, or (2) that the right was not clearly established at the time in question. See Pearson v. Callahan, 555 U.S. 223, 232,
For the reasons stated above, the MDC Plaintiffs plausibly plead that the DOJ Defendants violated their substantive due process rights. With regard to the second prong of this inquiry, the law regarding the punishment of pretrial detainees was clearly established in the fall of 2001. As discussed, Wolfish made clear that a particular condition or restriction of pretrial detention not reasonably related to a legitimate governmental objective is punish
Hasty further rejected the argument that the póst-9/ll context warranted qualified immunity even if it was otherwise unavailable. Id. at 159-60, 169. Recognizing the “gravity of the situation”. that 9/11 presented, we explained that qualified •immunity remained inappropriate because a pretrial detainee’s right to be free from punishment does not vary with the surrounding circumstances. Id. at 159. Nothing has undermined the logic or prec-edential authority of our qualified immunity holding in Hasty. We therefore conclude that the DOJ Defendants are not entitled to qualified immunity on the MDC Plaintiffs’ conditions of confinement claim.
C. The MDC Defendants
In his opinion below, Judge Gleeson divided the MDC Plaintiffs’ conditions of confinement claim against the MDC Defendants into two categories: “official conditions” allegations and “unofficial abuse” allegations. The “official conditions” allegations concern express confinement policies that the MDC Defendants approved and implemented; the “unofficial abuse” allegations concern the physical and verbal abuse that the MDC Defendants employed or permitted their subordinates to employ. We find this taxonomy helpful in analyzing the conditions claim against Hasty, Sherman, and Zenk.
1. Official Conditions
The MDC Plaintiffs generally allege that the “official conditions” to which the MDC Defendants subjected them constituted punishment. We do not address whether Plaintiffs have sufficiently alleged an express intent to punish, but rather analyze whether they have plausibly pleaded that (1) the MDC Defendants caused them to suffer the challenged conditions, and that (2) the challenged conditions were “not reasonably related to a legitimate goal,” which allows us to infer punitive intent, Wolfish,
The MDC Plaintiffs plausibly plead that Hasty and Sherman are personally responsible for and caused the MDC Plaintiffs to suffer the challenged conditions. The Complaint contains allegations that Hasty ordered the creation of the ADMAX SHU and directed two of his subordinates to design “extremely restrictive conditions of confinement.” Compl. ¶¶ 24, 75; see also id. ¶ 76 (describing the extreme conditions in the ADMAX SHU). According to the Complaint, those conditions were then approved and implemented by Hasty and Sherman. Id. ¶ 75.
The OIG reports support these allegations. While the decision to impose highly restrictive conditions was made at BOP headquarters, OIG Report at 19, MDC officials created the particular conditions imposed, id. at 124-25. The reports specify that MDC officials modified one wing of the preexisting SHU to accommodate the detainees and that the ADMAX SHU was
However, the MDC Plaintiffs also plausibly plead that Hasty and Sherman subjected them to the challenged conditions with punitive intent because the conditions were “not reasonably related, to a legitimate goal.” Wolfish
The MDC Defendants, and our dissenting colleague, note that BOP Headquarters ordered that the detainees “be placed in the highest level of restrictive detention” and, thus, argue that we cannot infer punitive intent from the MDC Defendants’ compliance with that order. See Dissenting Op., post at 295 n. 40, 294 (quoting OIG Report at 112). They further claim that because the FBI had designated the individuals held in the ADMAX SHU as “of interest,” the MDC Defendants are absolved from liability. See, e.g., Hasty Br. 17, 25-26.
But even if Hasty and Sherman initially believed that they would be housing only those detainees who were suspected of ties to terrorism, the Complaint contains sufficient factual allegations that the MDC Defendants eventually knew that the FBI lacked any individualized suspicion for many of the detainees that were sent to the ADMAX SHU. Plaintiffs allege that Hasty and Sherman received regular written updates explaining why each detainee had been arrested and including “all evidence relevant to the danger he might pose” to the MDC, and that these updates often lacked any indication of a suspicion of a tie to terrorism. Compl. ¶ 69.
The MDC Plaintiffs relatedly allege that Hasty and Sherman knew that BOP regulations require individualized assessments for detainees placed in the SHU for more than seven days, yet ordered the MDC Plaintiffs’ continued detention in the ADMAX SHU without performing these assessments, and Hasty “ordered [his] subordinates to ignore BOP regulations regarding detention conditions.” Id. ¶ 68; see also id. ¶¶ 73-74.
The MDC Plaintiffs further allege that Hasty and Sherman approved a document
The OIG Report directly supports these allegations; as stated by one BOP official, all 9/11 detainees at the MDC were placed in the ADMAX SHU and subjected to the official conditions because, at least initially, “the BOP did not really know whom the detainees were.” OIG Report at 19; see also Compl. ¶ 4; OIG Report at 112, 126. Specific factual allegations that Hasty and Sherman failed to assess whether the restrictive conditions were appropriate for individual 9/11 detainees buttress the MDC Plaintiffs’ claim that the challenged conditions were not reasonably related to a legitimate goal, and that Hasty and Sherman were personally responsible for the treatment.
We recognize that the MDC Defendants may have been in a difficult position when they received detainees without accompanying information regarding those individuals. Record proof may eventually establish that the MDC Plaintiffs’ claim is limited to the period of time that Hasty and Sherman knew that the MDC Plaintiffs were being held without suspicion of ties to terrorism. But we cannot conclude, at least at the motion to dismiss stage, that it was reasonable to take a default position of imposing the most restrictive form of detention available when one lacks individualized evidence that the detainee poses a danger to the institution or the nation. Accordingly, we conclude that the MDC Plaintiffs plausibly plead a substantive due process claim against Hasty and Sherman as to the official conditions.
The Complaint does not, however, permit an inference of personal liability as to Zenk, who did not become MDC Warden until April 22, 2002, when only two Plaintiffs remained in the ADMAX SHU. Fundamentally, the allegations that personally identify Zenk are too general and conclu-sory to support Plaintiffs’ claim. We therefore dismiss the MDC Plaintiffs’ substantive due process claim against Zenk.
2. Unofficial Abuse
The district court properly viewed the MDC Plaintiffs’ “unofficial abuse” allegations under the deliberate indifference standard commonly applied in the Eighth Amendment prisoner-mistreatment context. See Turkmen III, 915 F.Sqpp.2d at 341 & n. 13.
Prior to Iqbal, this Court recognized claims against a supervisory defendant so long as the defendant was personally involved with the alleged constitutional violation. In Colon v. Coughlin,
Our conclusion is consistent with Iqbal, this Court’s prior rulings, see Walker,
The MDC Plaintiffs’ “unofficial abuse” claim therefore survives so long as Plaintiffs plausibly plead that the conditions were sufficiently serious, and Hasty and Sherman “kn[e]w of, and disregarded], an excessive risk to inmate health or safety.” Walker,
For example, the Complaint contains allegations that Hasty avoided evidence of detainee abuse by “neglecting to make rounds on the ADMAX [SHU] unit,” as was required of him by BOP policy. Id. ¶ 24. The MDC Plaintiffs also allege that Hasty was nonetheless made aware of the abuse “through inmate complaints, staff complaints, hunger strikes, and suicide attempts.” Id.; see' also id. ¶¶ 77-78 (detailing how Hasty made it difficult for detainees to file complaints and ignored the evidence when they did, and how staff officials who complained were called “snitches” and were threatened). Indeed, com
The allegations against Sherman, because they are more general and eonclu-sory in nature, are more tenuous. For instance, Plaintiffs allege principally that Sherman “allowed his subordinates to abuse MDC Plaintiffs and class members with impunity. Sherman made rounds on the ADMAX SHU and was aware of conditions there.” Id. ¶26. These allegations lack a specific factual basis to support a claim that Sherman was aware of the particular abuses at issue. Therefore, we hold that the MDC Plaintiffs fail to plausibly plead an unofficial conditions claim as to Sherman.
3. Qualified Immunity
The MDC Defendants claim that qualified immunity is appropriate because they were merely following the orders of BOP superiors, “with the input and guidance of the FBI and INS.” See, e.g., Hasty Br. 33. Specifically, Hasty claims that the “BOP, INS, and FBI officials ordered [him] to place ‘high interest’ 9/11 detainees in the ADMAX SHU, and directed that they be subject to the ‘tightest’ security possible.” Id. He further argues that “[t]he sole basis for the detainees’ confinement in the AD-MAX SHU — the FBI’s investigative interest — -was outside the scope of MDC officials’ discretion.” Id. at 35. By extension, he claims that it was reasonable to detain the MDC Plaintiffs and other “high interest” 9/11 detainees in the ADMAX SHU.
These arguments fail. First, as with the DOJ Defendants, our qualified immunity analysis in Hasty applies with equal force to' the MDC Plaintiffs’ conditions claim against Hasty and Sherman in this case. See Hasty,
Nor is Hasty entitled to qualified immunity with regard to the unofficial conditions claim. As discussed, the MDC Plaintiffs have plausibly alleged that Hasty personally violated their constitutional rights by knowing of, and disregarding, an excessive risk to their health or safety. The right of the MDC Plaintiffs to be free from such unofficial abuse was clearly established at the time of the events in question. See, e.g., DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
Plaintiffs’ allegations, the OIG Report, and the MDC Defendants’ arguments confirm that Hasty and Sherman housed 9/11 detainees for extended periods of time in highly restrictive conditions without ever obtaining individualized information that would warrant this treatment. Because Plaintiffs’ allegations support an inference of punitive intent, and it would be inappropriate to wrestle with competing factual accounts at this stage of the litigation, we hold that a reasonable officer in the MDC Defendants’ position would have concluded that this treatment was not reasonably related to a legitimate goal.
IV. Claim 2: Equal Protection — Conditions of Confinement
Plaintiffs .next assert a claim that Defendants subjected them to the harsh conditions of confinement detailed above based on their race, ethnicity, religion, and/or national origin, in violation of the equal protection guarantee of the Fifth Amendment.
A. Applicable Legal Standard
To state an equal protection violation under the Fifth Amendment, “the plaintiff must plead and prove that the defendant acted with discriminatory purpose.” Iqbal,
A plaintiff can show intentional discrimination by: (1) “pointing] to a law or policy that expressly classifies persons on the basis of’ a suspect classification; (2) “identifying] a facially neutral law or policy that has been applied in an intentionally discriminatory manner[;]” or (3) “alleging] that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus.” Brown v. City of Oneonta, N.Y.,
The district court characterized Plaintiffs’ equal protection claim as falling within the first category — that is, a claim that Defendants subjected Plaintiffs to the challenged conditions of confinement pursuant to a policy that expressly classified Plaintiffs on the basis of their race, ethnicity, religion, and/or national origin. Given our reading of Plaintiffs’ allegations and arguments on appeal, we will not analyze this claim, particularly as, it relates to the MDC Defendants, under the first equal protection theory alone.
B. The DOJ Defendants
The district court concluded that Plaintiffs failed to state an equal protection claim against the DOJ Defendants, but “f[ou]nd the issue to be a close one.” Turkmen III,
Plaintiffs’ well-pleaded allegations and the OIG Report give rise to the following reasonable inferences, which render plausible the MDC Plaintiffs’ equal protection claim against the DOJ Defendants: (1) the New York FBI field office discriminatorily targeted individuals in the 9/11 investigation not based on individualized suspicion, but rather based on race, ethnicity, religion, and/or national origin, and those individuals were then placed on the New York List; (2) the DOJ Defendants knew about the discriminatory manner in which the New York FBI field office placed individuals on the New York List; and (3) the DOJ Defendants condoned the New York FBI’s discrimination by merging the New York List with the INS List, thereby ensuring that some of the individuals on the New York List would be subjected to the challenged conditions of confinement.
Plaintiffs allege that the New York FBI field office targeted individuals in the PENTTBOM investigation and placed them on the New York List based on race, ethnicity, religion, and/or national origin. “[T]he head of the New York FBI field office stated that an individual’s Arab appearance and status as a Muslim were factors to consider in the investigation.” Compl. ¶ 42. Even more telling, a supervisor in the same local FBI office, “who oversaw the clearance process[,] stated that a tip about Russian tourists filming the Midtown tunnel was ‘obviously’ of no interest, but that the same tip about Egyptians was of interest.” Id. Individuals who were arrested by the New York FBI and INS in connection with a PENTTBOM lead were automatically treated as “of interest,” OIG Report at 40-41, and were placed on the New York List, see id. at 53.
This discriminatory approach, focusing on “an individual’s Arab appearance,” Compl. ¶ 42, is consistent with what is alleged to have occurred in Bajracharya’s case. Bajracharya, who as noted, is a Buddhist and native of Nepal, came to the FBI’s attention when an employee from the Queens County District Attorney’s Office “observed an ‘[A]rab male’ videotaping outside a Queens[] office building that contained the Queens County District Attorney's] Office and a New York FBI office.” /$. ¶ 230. Investigators from the District Attorney’s Office questioned Baj-racharya about “why he was taking pictures,” and Bajracharya “tried to explain that he was a tourist.” Id. He was arrested after acknowledging he overstayed his visa and was detained in the ADMAX SHU. Given the Complaint’s allegations regarding the New York FBI’s tactics, it is reasonable to infer that officials in the New York FBI targeted certain individuals, including Plaintiffs, for investigation, arrest, and placement on the New York List simply because they were, or appeared to be, Arab or Muslim, and not because of any suspicion regarding a link to terrorism.
As we conclude above with respect to the substantive due process claim, the DOJ Defendants were informed of the problems presented by .the New York List. As noted, the OIG Report' reveals that by October 2001 the SIOC Working Group learned about the New York List and that “officials at the INS, FBI, and [DOJ] raised concerns about, among other things, whether the aliens had any nexus to terrorism.” OIG Report at 53. Plaintiffs allege that a high-ranking DOJ official noted that individuals were detained “without any attempt” to determine if they were of “actual interest,” and that the official “was concerned early' in the investigation that detainees were being held simply on the basis of their ethnicity.” Compl. ¶ 45.
While the DOJ Defendants’ mere knowledge of this discriminatory action by the New York FBI field office would be insufficient to allow for the reasonable inference that these Defendants possessed the discriminatory purpose required to state an equal protection claim, Plaintiffs’ allegations are not limited to the DOJ Defendants’ knowledge alone. Rather, as we discuss in detail in the substantive due process analysis above, Plaintiffs plausibly plead that Ashcroft made the decision to merge the New York List with the national INS List, ensuring that some of the individuals on the New York List would be placed in, or remain detained in, the challenged conditions of confinement. Plaintiffs further allege that Mueller and Ziglar were aware that the New York List contained detainees against whom the FBI had asserted no interest and that subjecting them to the challenged conditions would be facially unreasonable. In ordering and complying with the merger of the New York List, the DOJ Defendants actively condoned the New York FBI field office’s discriminatory formulation of that list.
The DOJ Defendants’ condonation of the New York FBI field office’s purposeful discrimination allows us to reasonably infer at the motion to dismiss stage that the DOJ Defendants themselves acted with discriminatory purpose. The Supreme Court in Iqbal stated that “discrete wrongs — for instance, beatings — by lower level Government actors[ ] ... if true, and if condoned by [Ashcroft and Mueller], could be the basis for some inference of wrongful intent on [Ashcroft and Mueller’s] part.”
Contrary to the dissent’s contentions, see Dissenting Op., post at 295-97, this case is distinguishable from Iqbal, where the Supreme Court concluded that the plaintiff failed to state an-equal protection claim. In Iqbal, there were “more likely explanations” for why the plaintiff was detained in harsh conditions other than his race, religion, or national origin.
In this case, unlike in Iqbal, it is not “more likely” that the MDC Plaintiffs were detained in the challenged conditions because of their suspected ties to the 9/11 attacks. Indeed, as discussed at length earlier, Plaintiffs have plausibly alleged that they were detained without any suspicion of a link to terrorist activity and that the DOJ Defendants knew that the government lacked information tying Plaintiffs to terrorist activity, but decided to merge the lists anyway.
The dissent also argues that we cannot plausibly infer the DOJ Defendants’ discriminatory intent from the merger decision because not all of the individuals on the New York List were subjected to the same level of restrictive confinement. See Dissenting Op., post at 297-98. But the fact that some individuals of the same race, ethnicity, religion, and/or national origin as the MDC Plaintiffs were restrained in the Passaic County Jail, as opposed to the ADMAX SHU, hardly dooms the MDC Plaintiffs’ claim against the DOJ Defendants. There is no allegation that the DOJ Defendants were responsible for the assignment of certain actual or perceived Arab and Muslim males to Passaic as opposed to the more restrictive AD-MAX SHU. See OIG Report at 17-18, 126-27, 158 (noting that assignment responsibility fell largely to the arresting FBI agent). Rather, Plaintiffs have plausibly alleged that the DOJ Defendants condoned and ratified the New York FBI’s discrimination in identifying detain
Based on the foregoing, we conclude that the MDC Plaintiffs’ allegations are sufficient to state an equal protection claim against Ashcroft, Mueller, and Ziglar for their condonation of the New York FBI’s discriminatory formulation of the New York List, which resulted in the MDC Plaintiffs being subjected to the conditions of confinement challenged here.
C. The MDC Defendants
We agree with the district court that the MDC Plaintiffs have stated a plausible equal protection claim against Hasty and Sherman, although we base our decision on somewhat different reasoning than that employed by the court below. However, we do not agree with the district court that the MDC Plaintiffs have adequately alleged this claim against Zenk.
Our conclusion focuses on allegations of mendacity by Hasty and Sherman regarding the basis for detaining the MDC Plaintiffs in the ADMAX SHU. The Complaint asserts that Hasty and Sherman “were aware that placing the 9/11 detainees in the ADMAX SHU unit without an individualized determination of dangerousness or risk was unlawful.” Compl. ¶ 74. However, these Defendants never actually undertook that “required individualized assessment.” Id. ¶ 73. Nevertheless, Hasty and Sherman approved a document that “untruthfully stated that the executive staff at [the] MDC had classified the ‘suspected terrorists’ as ‘High Security’ based on an individualized assessment of their ‘precipitating offense, past terrorist behavior, and inability to adapt to incarceration.’ ” Id. ¶ 74. In fact, neither Hasty nor Sherman “saw or considered information in any of these categories in deciding to place the 9/11 detainees in the ADMAX SHU.” Id.;
Based on the foregoing allegations of duplicity regarding the basis for confining
The dissent argues that we cannot infer discriminatory intent from the MDC Defendants’ approval of this false document, concluding that the “more likely” reason for this mendacity is these Defendants’ concern for national security. See Dissenting Op., post at 299-300. Although recognizing that the MDC Defendants might be faulted for approving a false document stating that each detainee had been assessed as a “High Security” “suspected terrorist[ ],” our dissenting colleague believes Hasty and Sherman’s actions are more likely explained by reliance on the FBI’s designation of each MDC Plaintiff as a person “of interest” or “of high interest” to the ongoing terrorism investigation. Yet, the allegations in the Complaint belie this alternative explanation for Hasty and Sherman’s dishonesty. Plaintiffs allege that the “MDC Defendants were aware that the FBI had not developed any information” to tie the 9/11 detainees to terrorism. Compl. ¶ 69 (emphasis added). Indeed, the MDC Defendants received regular updates on the FBI’s investigation, including the dearth of evidence connecting the 9/11 detainees to terrorism. Such briefing — placing Hksty and Sherman on repeated notice of the lack of any specific information justifying restrictive confinement in the ADMAX SHU — renders implausible the innocent explanation for their mendacity.
As an additional matter, the fact that the false document that Hasty and Sherman approved, on its face, applied to suspected terrorists and not just actual or perceived Arabs and Muslims does not undermine the reasonableness of the inference that these Defendants acted based on discriminatory intent. Plaintiffs allege that Hasty and Sherman approved the document even though they had not performed the required individualized assessments and knew that keeping “the 9/11 detainees” in the ADMAX SHU without those assessments was unlawful. Id. ¶¶ 73-74. They further allege that, in approving the document, Hasty and Sherman failed to consider the past offenses, past terrorist activity, and inability to adapt to incarceration with respect to “the 9/11 detainees.” Id. ¶ 74. Based on Plaintiffs’ allegations about how the false document related in particular to the 9/11 detainees, a group the Complaint specifically defines on racial, ethnic, and religious grounds, see id. ¶ 1, it is reasonable to infer, at least at the motion to dismiss stage, that Hasty and Sherman lied in order to conceal an intent to discriminate on the basis of suspect classifications.
Further buttressing this inference, the Complaint asserts that MDC staff used
The context in which the term “terrorist” was used at the MDC bolsters the inference that the MDC Plaintiffs were believed to be terrorists simply because they were, or were perceived to be, Arab or Muslim. Significantly, the term “terrorist” was not used in isolation. Rather, MDC staff called the MDC Plaintiffs “ ‘fucking Muslims’ and ‘terrorists,’ ” Compl. ¶ 147, as well as “ ‘terrorist’ and ‘Arabic asshole,’ ” id. ¶ 218; see also Supplemental OIG Report at 28 (noting that along with the term “terrorists,” MDC staff referred to detainees as “fucking Muslims” and “bin Laden Junior” (internal quotation marks omitted)).
While most of the aforementioned comments are not directly attributed to Hasty, Sherman, or Zenk, Plaintiffs do allege that the use of racially, ethnically, and religiously charged language was brought to the attention of the MDC Defendants through detainee complaints and reports ■ from MDC staff, among other means. Mere knowledge of the MDC staffs discriminatory comments, of course, is insufficient to infer shared discriminatory intent by Hasty, Sherman, or Zenk. See Iqbal,
In view of the foregoing, the MDC Plaintiffs have stated a plausible claim that Hasty and Sherman detained them in the challenged conditions because of their race, ethnicity, religion, and/or national origin. These Defendants’ approval of the false document, and Hasty’s use of charged language in the particular context of the MDC Plaintiffs’ detention, support the reasonable inference that Hasty and Sherman subjected the MDC Plaintiffs to harsh conditions of confinement based on suspect classifications.
With respect to Zenk, the MDC Plaintiffs’ allegations are more limited and fail to support the reasonable inference that he established or implemented the alleged
D. Qualified Immunity
The DOJ Defendants, Hasty, and Sherman are not entitled to qualified immunity on the MDC Plaintiffs’ equal protection claim. With regard to the first prong of this inquiry, whether the complaint plausibly pleads that a defendant personally violated the plaintiffs constitutional rights, for the reasons stated above, the MDC Plaintiffs have plausibly alleged that Ashcroft, Mueller, Ziglar, Hasty, and Sherman violated their rights under the equal protection guarantee.
With respect to the second prong of the inquiry, it was clearly established at the time of Plaintiffs’ detention that it was illegal to hold individuals in harsh conditions of confinement and otherwise target them for mistreatment because of their race, ethnicity, religion, and/or national origin. Plaintiffs’ right “not to be subjected to ethnic or religious discrimination[ ] w[as] ... clearly established prior to 9/11, and ... remained clearly established even in the aftermath of that horrific event.” Hasty,
We reverse the portion of the district court’s decision that dismissed the MDC Plaintiffs’ equal protection claim against the DOJ Defendants, affirm the district court’s denial of Hasty and Sherman’s motions to dismiss the MDC Plaintiffs’ claim, and reverse the district court’s decision denying Zenk’s motion to dismiss the equal protection claim.
Because the Passaic Plaintiffs were held in the general population and not the AD-MAX SHU, we agree with the district court that they have failed to adequately plead that they were subjected to harsh conditions of confinement because of their race, ethnicity, religion, and/or national origin. Thus, we affirm the district court’s dismissal of the Passaic Plaintiffs’ equal protection claim.
Y. Claim 6: Unreasonable and Punitive Strip Searches
The MDC Plaintiffs claim that they were subject to unreasonable and strip searches while detained at the MDC, in violation of the Fourth and Fifth Amendments.
Determining the legal standard that applies to this claim turns on whether the MDC Plaintiffs were held in a prison or a jail. See Hasty,
B. The MDC Defendants
The MDC Plaintiffs allege that Defendant Joseph Cuciti, a former lieutenant at the MDC and not a party on appeal, was tasked with “developing the strip-search policy on the ADMAX [SHU].” Compl. ¶ 111. Plaintiffs further claim that “Hasty ordered ... Cuciti to design extremely restrictive conditions of confinement.” Id. ¶ 75. The reasonable inference based on these allegations is that Hasty ordered Cuciti to develop the strip-search policy, which was “then approved and implemented by Hasty and Sherman, and, later, by Zenk.” Id.
Plaintiffs allege that the 9/11 detainees at the MDC were strip searched upon arrival, and again after they had been escorted in shackles and under continuous guard to the ADMAX SHU. They were also strip searched every time they were taken from or returned to their cells, including after non-contact attorney visits, when “physical contact between parties was prevented by a clear partition,” OIG Report at 123, and when being transferred from one cell to another. Benatta was strip searched on September 23, 24, and 26 of 2001, even though he was not let out of his cell on any of those days. Numerous strip searches were documented in a “visual search log” that was created for review by MDC management, including Hasty. Compl. ¶ 114 (internal .quotation marks omitted).
Plaintiffs’ allegations regarding the strip searches are supported by the Supplemental OIG Report, which concluded that MDC staff “inappropriately used strip searches to intimidate and punish detainees.” Supplemental OIG Report at 35. That report also “questioned the need for the number of strip searches, such as after attorney and social visits in non-contact rooms.” Id.
The foregoing allegations, supported as they are by the Supplemental OIG Report, are sufficient to establish at this stage of the litigation that Hasty and Sherman were personally involved in creating and executing a strip-search policy that was not reasonably related to legitimate penological interests. Hasty ordered the policy, and both he and Sherman approved and implemented it. Under that policy, the MDC Plaintiffs were strip searched when there was no possibility that they could have obtained contraband.
With respect to Zenk, however, the MDC Plaintiffs fail to state a plausible Fourth Amendment claim. As noted earlier, Plaintiffs do not assert any claim against Zenk for injuries they suffered prior to the date on which he became Warden of the MDC, which was April 22, 2002. Only two Plaintiffs, Benatta and Hammouda, were still detained at the MDC as of that date. These Plaintiffs have not sufficiently alleged that they were unlawfully strip searched during the period in which Zenk was Warden of the MDC.
C. Qualified Immunity
Hasty and Sherman are not entitled to qualified immunity on the MDC Plaintiffs’ strip search claim. With respect to the first prong of the qualified immunity analysis, Plaintiffs have plausibly alleged that Hasty and Sherman each violated the MDC Plaintiffs’ rights under the Fourth Amendment. With regard to the second prong of the inquiry, Plaintiffs’ Fourth Amendment rights were clearly established at the time of the searches at issue.
In Hasty, we denied Hasty qualified immunity on the plaintiffs Fourth Amendment claim, stating that in the wake of 9/11 “it was clearly established that even the standard most favorable to prison officials required that strip and body-cavity searches be rationally related to legitimate government purposes.”
Accordingly, we affirm the district court’s denial of Hasty and Sherman’s motions to dismiss the MDC Plaintiffs’ Fourth Amendment strip search claim, and reverse the district court’s denial of Zenk’s motion to dismiss this claim.
VI. Claim 7: Conspiracy Under 42 U.S.C. § 1985
Plaintiffs’ final claim is that Defendants conspired to deprive them of their rights in violation of 42 U.S.C. § 1985(3).
A. Applicable Legal Standard
A conspiracy claim under Section 1985(3) has-four elements: “(1) a conspiracy, (2) for the purpose of depriving any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws, (3) an act in furtherance of the conspiracy, and (4) whereby a person is injured in his person or property or deprived of a right or privilege of a citizen.” Hasty,
B. The Sufficiency of the Allegations
In this case, the MDC Plaintiffs have sufficiently alleged that Ashcroft, Mueller, and Ziglar met regularly and eventually agreed to subject the detainees to the challenged conditions of confinement by merging, and complying with the merger of, the New York List. The MDC Plaintiffs have also plausibly alleged that the DOJ Defendants’ actions with respect to the New York List merger were based on the discriminatory animus required for a Section 1985(3) conspiracy claim, as we conclude above in our analysis of the equal protection claim. With respect to Hasty and Sherman, their joint approval of the false document without performing the requisite individualized assessment supports the reasonable inference that these two Defendants came to an agreement to and did subject Plaintiffs to harsh conditions of confinement based on the discriminatory animus required by Section 1985(3).
Plaintiffs also allege an agreement, albeit not an explicit one, among the DOJ Defendants and Hasty and Sherman to effectuate the harsh conditions of confinement with discriminatory intent. Such a tacit agreement can suffice under Section 1985(3). See Webb v. Goord,
Accordingly, the MDC Plaintiffs’ allegations state a plausible claim for a Section 1985(3) conspiracy against Ashcroft, Mueller, Ziglar, Hasty, and Sherman.
C. The Intracorporate Conspiracy Doctrine
The MDC Defendants argue that they are legally incapable of conspiring with each other, and with the DOJ Defendants, because they are all part of the same governmental entity — the DOJ. In Girard v. 94th Street & Fifth Avenue Corp.,
Assuming that Defendants can ultimately invoke the intracorporate conspiracy doctrine in this case, at this stage of the litigation, we cannot conclude that Ashcroft, Mueller, Ziglar, Hasty,, and Sherman acted as members of a single policymaking entity for purposes of the MDC Plaintiffs’ Section 1985(3) conspiracy claim. According to the Complaint, the former Attorney General, the former Director of the FBI, the former Commissioner of the INS, and the former Warden and Associate Warden at the MDC had varied responsibilities and functions that distinguish them from the single corporate entity in Girard. Although Hasty and Sherman may have acted, at least in part, to implement the DOJ Defendants’ policy, it is also the case that Hasty and Sherman themselves established policies at the- MDC. Thus, factual questions about how disparate or distinct Defendants’ functions were, and how policy was created by the various Defendants, preclude us from deciding as a matter of law that Defendants resemble the single policymaking body of a corporation.
D. Qualified Immunity
The DOJ Defendants, Hasty, and Sherman are not entitled to qualified immunity on this claim. First, the MDC Plaintiffs have plausibly alleged a Section 1985(3) conspiracy claim against these Defendants.
Accordingly, we reverse the district court’s dismissal of the Section 1985(3) claim against the DOJ Defendants and affirm the denial of Hasty and Sherman’s motions to dismiss this claim. Because the MDC Plaintiffs fail to adequately plead that Zenk acted with discriminatory animus, we reverse the denial of Zenk’s motion to dismiss the conspiracy claim. This claim is also dismissed with respect to the Passaic Plaintiffs, as they fail to adequately plead that Defendants acted with the requisite discriminatory animus.
VII. Final Thoughts
If there is one guiding principle to our nation it is the rule of law. It protects the unpopular view, it restrains fear-based responses in times of trouble, and it sanctifies individual liberty regardless of wealth, faith, or color. The Constitution defines the limits of the Defendants’ authority; detaining individuals as if they were terrorists, in the most restrictive conditions of confinement available, simply because these individuals were, or .appeared to be, Arab or Muslim exceeds those limits. It might well be that national security concerns motivated the Defendants to take action, but that is of little solace to those who felt the brunt of that decision. The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.
Holding individuals in solitary confinement twenty-three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees’ constitutional rights. To use such a broad and general basis for such severe confinement without any further particularization of a reason to suspect an individual’s connection to terrorist activities requires certain assumptions about the “targeted group” not offered by Defendants nor supported in the record. It assumes that members of the group were already allied with or would be easily converted to the terrorist cause, until proven otherwise. Why else would no further particularization of a connection to terrorism be required? Perceived membership in the “targeted group” was seemingly enough to justify extended confinement in the most restrictive conditions available.
Discovery may show that the Defendants — the DOJ Defendants, in particular — are not personally responsible for detaining Plaintiffs in these conditions. But we simply cannot conclude at this stage that concern for the safety of our nation justified the violation of the constitutional rights on which this nation was built. The question at this stage of the litigation is whether the MDC Plaintiffs have plausibly pleaded that the Defendants exceeded the bounds of the Constitution in the wake of 9/11. We believe that they have.
CONCLUSION
For the foregoing reasons, we affirm in part and reverse in part the district court’s decision on Defendants’ Rule 12(b)(6) motions. More specifically, we conclude that:
The Clerk of the Court is directed to enter an order consistent with these conclusions, AFFIRMING in part and REVERSING in part, and REMANDING the matter to the district court for further proceedings consistent with this opinion.
Notes
. We use the term "out-of-status” alien to mean one who has either (1) entered the United States illegally and is deportable if apprehended, or (2) entered the United States legally but who has fallen "out of status” by violating the rules or guidelines for his non-immigrant status (often by overstaying his visa) in the United States and is deportable.
. For ease of reference, we refer to Ashcroft, Mueller, and Ziglar collectively as the "Department of Justice ('DOJ') Defendants,” and Hasty, Sherman, and Zenk collectively as the "MDC Defendants.” The operative complaint also alleges claims against MDC officials Joseph Cuciti and Salvatore Lopresti. Cuciti did not appeal the district court's decision, and Lopresti filed a notice of appeal but did not timely pay the filing fee or file a brief. Lopresti’s appeal was dismissed pursuant to Federal Rule of Appellate Procedure 31(c). Thus, we do not address the claims against Cuciti and Lopresti.
.For a more comprehensive review of this case’s procedural history, see Turkmen v. Ashcroft (Turkmen III),
. Benamar Benatta was originally detained by Canadian authorities on September 5, 2001, after crossing the Canadian border with false documentation. Following the September 11 attacks, Benatta was transported back to the United States and detained in the challenged conditions of confinement and pursuant to the post-9/11 investigation; therefore, we call him a "9/11 detainee.”
. There are two OIG reports. The first OIG report, published in June 2003, covers multiple aspects of law enforcement’s response to 9/11. See U.S. Dep’t of Justice, Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (April 2003) (the “OIG Report”), available at http://www.justice.gov/oig/special/0306/full. pdf. The second OIG report, published in December 2003, focuses on abuses at the MDC. See U.S. Dep’t of Justice, Office of the Inspector General, Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York (Dec. 2003) (the "Supplemental OIG Report”), available at http://www.justice. gov/oig/special/0312/final.pdf.
. Various Defendants challenge the district court’s decision to consider the OIG reports to the extent that they are not contradicted by the Complaint. Defendants are correct that a complaint ”include[s] any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Cortec Indus., Inc. v. Sum Holding L.P.,
.The allegations set forth herein are drawn from the Complaint and those portions of the OIG reports incorporated by reference. See supra note 6. We presume the veracity of Plaintiffs’ well-pleaded allegations. Iqbal,
. The SIOC Working Group acquired this name because its initial meetings occurred at the FBI’s SIOC.
. For instance, Turkmen came to the FBI’s attention when his landlord called the FBI's 9/11 hotline and reported "that she rented an apartment in her home to several Middle Eastern men, and she ’would feel awful if her tenants were involved in terrorism and she didn't call.’ ” Compl. ¶ 251. "The FBI knew that her only basis for suspecting these men was that they were Middle Eastern; indeed, she reported that they were good tenants, and paid their rent on time." Id. Another alien was arrested after the FBI received a tip that stated that the small grocery store where he worked was overstaffed, thus arousing the tipster’s suspicions about the “Middle Eastern men" that worked there. OIG Report at 17.
.It is unclear whether this "small group” refers to the SIOC Working Group or a distinct group involving Ashcroft, Mueller, and other senior Washington, D.C., officials. One possibility is that Plaintiffs are referring to the small group that consisted of Ashcroft, Mueller, Michael Chertoff, who was then Assistant Attorney General of the Criminal Division, and the Deputy Attorney General. See OIG Report at 13. According to Chertoff, this group discussed the DOJ’s post-9/11 law enforcement strategy and policies. Given the makeup of this group and the SIOC Working Group, it is reasonable to infer that information flowed between them; for instance, Cher-toff's deputy, Alice Fisher, was placed in charge of immigration issues for the Criminal Division and personally established the SIOC Working Group.
. The OIG Report indicates that 491 of the 762 detainees were arrested in New York. OIG Report at 21-22. However, the OIG Report does not identify how many New York arrests were the result of the New York FBI’s efforts.
. The OIG Report posits that the New York response differed from the rest of the nation, at least in part, as a result of the New York FBI and U.S. Attorney's Office’s long tradition of independence from their headquarters in Washington, D.C. See OIG Report at 54.
.Plaintiffs have not appealed the district court's dismissal of their interference with counsel claims (Claims 4 and 5).
. We review the district court’s determination of Defendants’ Rule 12(b)(6) motions to dismiss de novo. See Papelino v. Albany Coll. of Pharmacy of Union Univ.,
. The rights-injured component of Plaintiffs' claims fall within a recognized Bivens context. This Circuit has presumed the availability of a Bivens remedy for substantive due process claims in several cases. See Arar,
. We note that the Ninth Circuit has declined to provide illegal aliens with an implied Bivens remedy for unlawful detention during deportation proceedings. Mirmehdi v. United States,
.Because we conclude that Plaintiffs' substantive due process, equal protection, and unreasonable punitive strip searches claims do not extend Bivens to a new context, we need not address “whether there is an alternative remedial scheme available to the plaintiff” or "whether special factors counsel hesitation in creating a Bivens remedy.” Arar,
. Turkmen and Sachdeva, the Passaic Plaintiffs, do not bring a substantive due process, conditions of confinement claim or unreasonable strip search claim (Claims 1 and 6).
. The parties have not argued for a different standard in this appeal. Accordingly, we do not address whether the rights of civil immigration detainees should be governed by a standard that is even more protective than the
. The dissent counters that ”[t]his is not apparent in the record,” citing Plaintiff Baj-racharya's videotaping of a building in Queens as evidence of that Plaintiff’s possible tie to terrorism. Dissenting Op., post at 283 n. 28. The dissent makes no mention, of course, of Plaintiff Khalifa, who was told that the FBI was only interested in his roommates, but who was arrested and then detained in the ADMAX SHU anyway, Compl. ¶ 197; or of Plaintiff Mehmood, who was arrested and detained in the ADMAX SHU in place of his wife, in whom the FBI had apparently expressed interest, but who was still breastfeeding their son, id. ¶ 159. The dissent further claims that detainees were not sent to the ADMAX SHU based on their perceived race or religion, but — as the OIG Report states— based on whether they were designated of "high interest” to the PENTTBOM investigation. Dissenting Op., post at 283 n. 28 (citing OIG Report at 18, 111). But, as the dissent concedes, id., Plaintiffs’ well-pleaded Complaint specifically contradicts this point: the MDC Plaintiffs were detained in the ADMAX SHU “even though they had not been classified 'high interest,’ ” Compl. ¶ 4.
. We acknowledge, as the dissent points out, that the MDC Plaintiffs did not advance the "lists-merger theory” before this Court or the district court. Dissenting Op., post at 283 n. 28. Rather, they structured the Complaint to challenge Ashcroft's arrest and detention" mandate as initially formulated and generally applied. In examining the Complaint’s sufficiency, we have been clear that the pleadings are inadequate to challenge the validity of the policy ab initio, but do state a claim with regard to the merger decision, an event that Plaintiffs explicitly reference in the Complaint. See Compl. ¶ 47; Pis.’ Br. 38. Sufficiency analysis requires a careful parsing of the Complaint and that is all that has occurred here.
. The dissent attempts to minimize the force of these comments, claiming that communications about a condition of confinement that was lifted before the merger decision cannot support an inference as to what the DOJ Defendants knew about the conditions in the ADMAX SHU. Dissenting Op., post at 288-89. Simply put, we disagree. The fact remains that a condition of confinement, less severe and abusive than the conditions at issue here, garnered the attention of senior officials; it stands to reason that conditions that kept detainees in their cells for twenty-three hours
. See, e.g., Neil A. Lewis, A Nation Challenged: The Detainees; Detentions After Attacks Pass 1,000, U.S. Says, N.Y. Times, Oct. 30, 2001, available at http://www.nytimes. com/2001/10/3O/us/a-nation-challenged-the-detainees-detentions-after-attacks-pass-1000-us-says.html (citing "common news reports of abuse involving] mistreatment of prisoners of Middle Eastern background at jails”).
. Furthermore, the OIG reports were issued pursuant to the’Office of the Inspector General’s responsibilities under the USA PATRIOT Act, which was enacted on October 26, 2001. See OIG Report at 3 n.6. The PATRIOT Act, Section 1001, reads: "The Inspector General of the Department of Justice shall designate one official who shall — (1) review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice.” PATRIOT Act, Pub.L. No. 107-56, § 1001, 115 Stat. 272 (2001). "On October 30, 2001, the OIG reviewed a newspaper article in which a September 11 detainee alleged he was physically abused when he arrived at the MDC on October 4, 2001. Based on the allegations in the article, the OIG's Investigations Division initiated an investigation into the matter.” OIG Report at 144. It seems to us most plausible that if the OIG — who is "under the authority, direction, and control of the Attorney General with respect to audits or investigations,” 5 U.S.C.App. 3 § 8E(a)(l) — was aware of the challenged conditions at the MDC, the DOJ Defendants were as well.
.Even some detainees who were not labeled "high interest” were nonetheless sent to the MDC’s ADMAX SHU. For example, "Abbasi, Bajracharya, Mehmood, and Khalifaf] were placed in the ADMAX SHU even though they had not been classified 'high interest' and despite the absence of any information indicating they were dangerous or involved in terrorism, or any other legitimate reason for such treatment.” Compl. ¶ 4.
. In October and November of 2001, the New York List contained approximately 300 detainees while the INS List for the rest of the nation contained only 200 detainees. OIG Report at 54.
. The OIG Report states that Levey specifically consulted David Laufman, the Deputy Attorney General's Chief of Staff. OIG Report at 62. The dissent takes this as definitive proof that Ashcroft was not consulted on this, or the merger, decision. Dissenting Op., post at 284-85. The dissent mischaracterizes our reference to the CIA checks decision. We do not contend that Levey consulted Ashcroft about that decision, nor do we need to. In our view, the fact that Levey spoke to Lauf-man about that decision is not the end of the matter; indeed, the only relevance of the CIA checks decision, period, is that Levey was not capable of making it on his own, suggesting that he also would not be able to make the list-merger decision on his own.
. Indeed, Ziglar told the OIG that he contacted Ashcroft's office on November 7, 2001, to discuss concerns about the process of clearing names from the INS Custody List, especially the impact that merging the lists would have on that process and said that "based on these and other contacts with senior Department officials, he believed the Department was fully aware" of the INS's concerns. OIG Report at 66-67. This also suggests that Levey had communicated those concerns to Ashcroft, who nonetheless made the decision to merge the lists.
.While the dissent’s observation that Levey did not attend'the October 22, 2001 meeting during which the "problems presented by the New York List” were discussed is accurate, it is also irrelevant. See Dissenting Op., post at 285-86 (quoting OIG Report at 55). We do not contend that Levey learned about the New York List at the October 22 meeting, but simply that he learned about it before the November 2 meeting, giving him time to consult with more senior officials, including Ashcroft, before communicating a decision at that November meeting. Indeed, one would think that Levey would not attend the November 2 meeting without knowing its agenda.
. The dissent challenges the sufficiency of Plaintiffs' allegations and our reading of them as "wholly speculative.” Dissenting Op., post at 285. Of course, Plaintiffs have no way of knowing what Levey and Ashcroft discussed; nor do we. Iqbal does not require as much, but rather "sufficient factual matter, accepted as true” to allow the court to draw the reasonable inference that Ashcroft was ultimately responsible for the decision.
. The dissent cites several cases that it claims demonstrate that individualized suspicion is not required for imposing restrictive conditions of confinement. Dissenting Op.,
. Plaintiffs’ allegations against Zenk do not extend to the "unofficial abuse” nor to any harm arising from the "official conditions” that occurred prior to April 22, 2002, the date he became MDC Warden.
. For example, the MDC Defendants were informed that Plaintiff Abbasi was " ‘encountered’ by INS pursuant to an FBI lead; that he used a fraudulent passport to enter the U.S. to seek asylum, and later destroyed that passport; that he requested and was denied various forms of immigration relief; that he obtained and used a fraudulent advance parole letter to enter the country, and that he was thus inadmissible. The update included no statement of FBI interest in Abbasi.” Compl. ¶ 72.
. The deliberate indifference standard would clearly apply if the MDC Plaintiffs had been prisoners entitled to the Eighth Amendment's protection against cruel and unusual punishment. See Walker v. Schult,
. The MDC Plaintiffs nonetheless maintain a substantive due process claim against Sherman as to the official conditions, as discussed supra.
. All Plaintiffs assert an equal protection claim against the DOJ Defendants. Abbasi, Khalifa, Mehmood, and Bajracharya do not assert this claim against Zenk, and Sacbdeva and Turkmen do not make this claim against any of the MDC Defendants.
. Given the clear language used by the Supreme Court in Iqbal regarding the detainees' connections to terrorism,
. Furthermore, the fact that Plaintiffs plausibly plead that the DOJ Defendants merged the New York List, and complied with the list merger, based on punitive intent (the substantive due process claim) arguably suggests the plausibility of the MDC Plaintiffs’ allegations that the DOJ Defendants also possessed the discriminatory intent required for an equal protection claim. See supra Section III.B.
. Moreover, to the extent this differential assignment of class members, again apparently by agents of the New York FBI and not the DOJ Defendants, might be relevant to Plaintiffs' equal protection claim, because it could suggest that the New York FBI was not actually discriminating, it is more appropriately considered at summary judgment. Indeed, the cases embraced by the dissent conclude that evidence of differential treatment of members of the same class may weaken an inference of discrimination at the summary judgment stage. See O'Connor v. Consol. Coin Caterers Corp.,
. As previously noted, the term “9/11 detainees” is defined in the Complaint as nonciti-zens from the Middle East, South Asia, and elsewhere who are Arab or Muslim, or were perceived to be Arab or Muslim. Individuals with certain of these characteristics who were arrested and detained in response to the 9/11 attacks constitute the putative class in this case.
. Only the MDC Plaintiffs assert this claim, which is only raised against the MDC Defendants. Benatta and Hammouda alone assert this claim against Zenk. To the extent that the MDC Plaintiffs’ allegations regarding the strip searches are cognizable under the Fifth Amendment, we factor these allegations into our analysis of the substantive due process claim, which is discussed above. See supra Section III.C.
. We note, however, that this standard, governs prison regulations, see Turner,
. To the extent the dissent believes that we premise Hasty and Sherman's personal involvement entirely on these Defendants' alleged review of the visual search log, see Dissenting Op., post at 302, that assertion is incorrect. As discussed, Plaintiffs have plausibly alleged that Hasty ordered the development of, and that he and Sherman approved and implemented, the challenged strip-search policy. Plaintiffs' allegations regarding the visual search log only buttress the inference of Hasty's personal involvement.
. Although the dissent correctly notes that Hodges was decided before the Supreme Court’s opinion in Turner, see Dissenting Op., post at 257, we have ratified Hodges in subsequent strip search case law. See Hasty,
. Section 1985(3) of Title 42 of the United States Code provides, in pertinent part, that: If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, ... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
. We note that the BOP and, therefore, the MDC, are subject to the supervision of the Attorney General. See 18 U.S.C. § 4041. We have also found one unpublished' district court decision that concludes that the Attorney General and employees of a BOP facility cannot conspire together under Section 1985. See Chesser v. Walton, No. 12-cv-01198-JPG,
. To date, four Courts of Appeals — for the Fourth, Seventh, Ninth, and D.C. Circuits— have declined to extend Bivens to suits against executive branch officials for national security actions taken after the 9/11 attacks. See Vance v. Rumsfeld,
Concurrence in Part
concurring in part in judgment and dissenting in part:
Today, our court becomes the first to hold that a Bivens action can be maintained against the nation’s two highest ranking law enforcement officials — the Attorney General of the United States and the Director of the Federal Bureau of Investigation (“FBI”) — for policies propounded to safeguard the nation in the immediate aftermath of the infamous al Qaeda terrorist attacks of September 11, 2001 (“9/11”).
Even if a Bivens action were properly recognized in this context — which I submit it is not — I would still dissent insofar as the majority denies qualified immunity to five former federal officials, Attorney General John Ashcroft, FBI Director Robert Mueller, Immigration and Naturalization Service (“INS”) Commissioner James Zig-lar (“DOJ Defendants”), Metropolitan Detention Center (“MDC”) Warden Dennis Hasty, and Associate Warden James Sherman (“MDC Defendants”), on plaintiffs’ policy-challenging claims of punitive and discriminatory confinement and unreason
Accordingly, because I conclude both that a Bivens remedy should not be extended to plaintiffs’ policy-challenging claims and that the DOJ and MDC defendants are entitled, in any event, to qualified immunity, I dissent from the majority’s refusal to dismiss these claims.
A. The Narrow Scope of Bivens Actions
On three occasions in the decade between 1971 and 1980, the Supreme Court implied directly from the Constitution private damages actions against federal officials for alleged violations of rights. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
This reluctance to extend Bivens is grounded in our constitutional structure of separated powers. As the Supreme Court has explained, deciding whether to extend Bivens focuses not on “the merits of the particular remedy” sought, but on “who should decide whether such a remedy should be provided,” specifically, the legislative branch of government, Congress, or the adjudicative branch, the judiciary. Bush v. Lucas,
Heeding this precedent, our own court, en banc, has stated “that the Bivens remedy is an extraordinary thing that should rarely if ever be applied in new contexts.” Arar v. Ashcroft,
Applying these principles here, I conclude that plaintiffs’ constitutional challenges to an alleged executive policy for confining lawfully arrested illegal aliens in the aftermath of the 9/11 attacks cannot pass the stringent test for recognizing a Bivens action. In holding otherwise, the panel majority maintains that plaintiffs’ challenges to the conditions of their con
B. Plaintiffs’ Claims Do Not Arise in an Established Bivens Context
1. The Arar v. Ashcroft Standard for Identifying Bivens Context Is Holistic and Cannot Be Reduced to Two Factors
In deciding whether a claim arises in a previously recognized Bivens context, this panel is bound by our court’s en banc decision in Arar v. Ashcroft, which defines “context” as “a potentially recurring scenario that has similar legal and factual components.”
Arar’s definition of context is unqualified, contemplating a careful, holistic examination of all legal and factual components of the “scenario” in which a claim arises to see if it is, indeed, a recurrent example of a previously recognized Bivens context. Arar v. Ashcroft,
It is precisely because a Bivens judgment is made only after weighing all factors relevant to a given scenario that, when another case arises presenting similar legal and factual components, a court need not repeat the process. But where a proposed Bivens claim presents legal and factual circumstances that were not present in an earlier Bivens case, a new assessment is necessary because no court has yet made the requisite “judgment” that a judicially implied damages remedy is “the best way” to implement constitutional guarantees in that context. Wilkie v. Robbins,
That is the concern here. No court has ever made the judgment that an implied damages remedy is the best way to implement constitutional guarantees of substantive due process, equal protection, and reasonable search when lawfully arrested illegal aliens 'challenge an executive confinement policy, purportedly made at the cabinet level in a time of crisis, and implicating national security and immigration authority. In the absence of a judgment made in that context, the majority cannot conclude that a Bivens remedy is available to these plaintiffs simply because they assert rights and mechanisms of injury present in some other Bivens casqs. Indeed, because rights and mechanisms of injury can arise in a variety of circumstances, presenting different legal and factual components, these two factors cannot alone identify context except at an impermissi-bly high level of generality. See Wilkie v. Robbins,
This generality concern is only exacerbated by the majority’s apparent willingness to mix and match a “right” from one Bivens case with a “mechanism of injury” from another and to conclude that wherever such a right and such a mechanism of injury are paired together, the resulting Bivens claim arises in an established context. See Majority Op., ante at 231-36; 237. The problem is that no court has previously made the requisite judgment with respect to that pairing, much less made it in a legal and factual scenario similar to the one presented here.
2. The Majority Cites No Case Affording a Bivens Remedy in a Scenario Legally and Factually Similar to that ' Presented Here
a. Punitive Confinement Claim
The majority cites two cases, Carlson v. Green,
' Deliberate indifference to an individual inmate’s particular health needs was also the basis for the constitutional claim in Correctional Services Corp. v. Malesko,
In Tellier v. Fields, also cited by the majority, ante at 235, a prison inmate did seek a Bivens remedy for restrictive confinement, but the right he asserted was procedural not substantive due process. See
In sum, the panel majority points to no case in which the Supreme Court or this court has yet extended a Bivens remedy to claims of punitive confinement by federal pre-trial detainees, and certainly not in the unprecedented context of a challenge to executive policy implicating the exercise of national security and immigration authority in a time of crisis.
Nor does the majority cite to any case affording a Bivens remedy for alleged discriminatory conditions of confinement. The context of the single equal protection case cited, Davis v. Passman,
Even in the context of employment discrimination claims, the Supreme Court has been reluctant to construe Davis v. Passman to reach beyond its particular factual scenario, especially where factors — not present in Davis — counsel hesitation. See Chappell v. Wallace,
c. Strip-Search Claim
In challenging the strip-search component of their restrictive confinement, the MDC Plaintiffs invoke the Fourth as well as the Fifth Amendment. The Fourth Amendment cases cited by the majority— Bivens, Groh v. Ramirez,
The potentially recurring scenario in Bivens was unlawful arrest, executed without probable cause and with excessive force. See
As for Groh and Castro, the searches there at issue were of private residences, a factually distinct scenario presenting different legally cognizable expectations of privacy giving rise to different legal standards of constitutional reasonableness than those applicable to prison searches. See Covino v. Patrissi,
To summarize, I respectfully dissent from the majority’s conclusion that plaintiffs policy-challenging claims to restrictive confinement arise in a familiar Bivens context because (1) to the extent the majority employs a rights-injury calculus to reach that conclusion, it construes context at an impermissibly high level of generality; and (2) no case cited by the plaintiffs or the majority has yet made the requisite judgment that a Bivens remedy is the best way to implement constitutional rights in a scenario with legal and factual components similar to those presented here. In short, the context here is “fundamentally different from anything recognized in Bivens or súbsequent cases.” Correctional Servs. Corp. v. Malesko,
C. Factors Counseling Against Extending Bivens to Plaintiffs’ Policy-Challenging Claims
Not only do the unique circumstances of this case not fall within an established Bivens context, but a number of those circumstances also counsel hesitation in extending a Bivens remedy here. See Bush v. Lucas,
1. Official Executive Policy
Plaintiffs challenge what they themselves characterize as an official confinement policy propounded by the nation’s two highest ranking law enforcement officials, the' Attorney General and the FBI Director, in response to the national security threat raised by the terrorist attacks of 9/11. Neither plaintiffs nor the panel majority identifies any case affording a Bivens remedy in the context of a constitutional challenge to executive branch policy, and certainly not to policy made at the cabinet level. This is not surprising. A Bivens action has never been considered a “proper vehicle for altering an entity’s policy.” Correctional Servs. Corp. v. Malesko,
That admonition counsels particular hesitation here where the challenged confinement policy was purportedly propounded and maintained not by rogue actors, see Kreines v. United States,
Nor is a different conclusion warranted here because subordinates of the Attorney General may have disagreed among themselves about the parameters of the challenged policy. See Majority Op., ante at 242.
As earlier stated, hesitation in extending Bivens does not suggest that federal policymakers — even those appointed by the President and of cabinet rank — are not bound by constitutional constraints. See supra at 224. It simply recognizes that where an executive policy is at issue, Congress, not the judiciary, is the branch best suited to decide whether a damages action is the appropriate vehicle for challenging that policy. See Arar v. Ashcroft,
2. Implicating Executive’s Immigration Authority
Further removing plaintiffs’ claims from any recognized Bivens context, and certainly counseling hesitation in extending a Bivens remedy, is the fact that the challenged policy implicates the executive’s immigration authority. As the Supreme Court has stated — in general and not simply with respect to Bivens — “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government,” matters “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference” absent congressional authorization. Harisiades v. Shaughnessy,
The majority, however, concludes that plaintiffs’ immigration status is irrelevant to assessing a Bivens context because illegal aliens have the same rights as citizens to be free from punitive or discriminatory conditions of confinement. See Majority Op., ante at 236. Whatever the merits of that conclusion generally, it begs the relevant Bivens extension question, which is not whether the Constitution affords illegal
Even assuming that in the familiar Bivens contexts of false arrest or deliberate indifference, the law were to conclude that the distinction between citizens and aliens did not counsel hesitation in extending a Bivens remedy, that is not this case. Plaintiffs here seek to employ a Bivens action to challenge an executive policy for the restrictive confinement of lawfully arrested illegal aliens while the FBI and CIA determined if they had any connection to recent terrorist attacks by aliens operating in this country or if they posed a threat of future attacks. This is hardly a familiar Bivens context, and such an intrusion on the executive’s immigration authority counsels hesitation in denominating a judicially implied damages remedy against policymakers as the “best way” to implement constitutional guarantees in those circumstances. Wilkie v. Robbins,
3. Implicating Executive’s National Security Authority
Plaintiffs’ claims also propose to inquire into — and dispute — the executive’s exercise of its national security authority. Indeed, that seems to be their primary purpose. This is an unprecedented Bivens context strongly counseling hesitation.
To explain, plaintiffs’ due process and equal protection claims require proof of defendants’ specific intent, either to punish, see Bell v. Wolfish,
The “legitimate goal” at issue here is national security. MDC Plaintiffs propose to prove that their confinement in the AD-MAX SHU was punitive and/or discriminatory by showing that there was no real national security need to maintain them in such restrictive confinement pending FBI-CIA clearance, at least not in the absence of prior individualized suspicion that each alien posed a terrorism threat. Plaintiffs propose to make essentially the same showing in challenging the reasonableness of the strip-search policy that accompanied restrictive confinement. Thus, the executive’s exercise of national security authority, far from being irrelevant to plaintiffs’ Bivens claims, see Majority Op., ante at 234, will be the critical focus of this litigation — and of the exhaustive discovery that will undoubtedly attend it.
The Supreme Court has never afforded a Bivens remedy to a party challenging the executive’s exercise of its national security authority. See Doe v. Rumsfeld,
Further counseling hesitation is the judiciary’s limited competency to make national security assessments, see Arar v. Ashcroft,
Hesitation is also counseled by sober recognition that national security assessments, “particularly in times of conflict, do not admit easy answers, especially not as products of the necessarily limited analysis undertaken in a single case.” Lebron v. Rumsfeld,
Here, the majority proposes to draw a line between generally and restrictively confining illegal aliens until they are cleared of terrorist connections. It concludes that general confinement raises no constitutional concerns — even though the aliens so confined were mostly Arab and Muslim. But it concludes that restrictive confinement of such aliens (at least in the absence of individualized suspicion) goes too far reasonably to relate to national security. See Majority Op., ante at 247. Setting aside the question of judicial competency to make this national security assessment, the Supreme Court has specifically cautioned against extending Bivens to claims that propose to show that government officials “went too far” in pursuit of a legitimate objective. Wilkie v. Robbins,
Where plaintiffs’ policy-challenging claims thus turn on a “reasonably related” inquiry implicating national security decisions made within “a complex and rapidly changing legal framework beset with eriti
Again, this does not mean that executive detention and confinement decisions implicating national security are insulated from judicial review. The Constitution’s guarantee of habeas corpus ensures against that. See Boumediene v. Bush,
Thus, where, as here, plaintiffs urge this court to imply a damages action where none has been provided by Congress so that persons unlawfully in this country can challenge executive policy relating to national security in a time of crisis, a proper regard for separation of powers counsels hesitation in judicially extending Bivens to that new context. Indeed, I would decline to extend Bivens to plaintiffs’ policy-challenging claims for this reason alone. There is, however, yet one further factor counseling hesitation.
4. Congress’s Failure To Provide a Damages Remedy
The judiciary will not imply a Bivens action where Congress itself “has provided what it considers adequate remedial mechanisms for constitutional violations.” Schweiker v. Chilicky,
As to the first point, Attorney General Ashcroft and FBI Director Mueller (as well as other DOJ officials) repeatedly testified before Congress that the arrest of illegal aliens was part of DOJ’s posh-9/11
As to the second point, when Congress enacted the PATRIOT Act in October 2001, it anticipated possible DOJ overreaching and required the Department’s Inspector General to review and report semi-annually to Congress on any identified abuses of civil rights and civil liberties in fighting terrorism.
As to the third point, these OIG Reports discussed concerns about the treatment of confined Arab and Muslim aliens, and Congress’s attention to these concerns is evident in the public record.
Accordingly, insofar as plaintiffs invoke Bivens to challenge an official executive policy for the restrictive confinement and strip searching of illegal aliens in the aftermath of the 9/11 attacks, I conclude that their claims must be dismissed because a Bivens remedy has not been extended to such a context, and factors strongly counsel against this court doing so here. If illegal aliens should be afforded a damages remedy to challenge an executive policy implicating immigration and national security authority, that decision should be made by Congress rather than by the courts. See Arar v. Ashcroft, 585 F.3d at 58Q-81 (“Congress is the appropriate branch” to decide whether policy decisions “directly related to the security of the population and the foreign affairs of the country” should be “subjected to the influ-, ence of litigation brought by aliens”).
II. Defendants Are Entitled to Qualified Immunity
A. The Concept of Qualified Immunity
Whether or not a Bivens action is available to challenge the executive policy at issue, defendants are entitled to dismissal on grounds of qualified immunity. Qualified immunity — a concept derived from common law — shields federal and state officials from claims for money damages “unless a plaintiff pleads facts showing that (1) the official violated a statutory or constitutional right, and (2) the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd,
Qualified immunity affords such a broad shield to protect not simply government officials but government itself, specifically, “government’s ability to perform its traditional functions.” Wyatt v. Cole,
Toward this end, qualified immunity serves to give public officials “breathing room to make reasonable but mistaken judgments” without fear of disabling liability. Messerschmidt v. Millender, — U.S. -,
It is difficult to imagine a public good more demanding of decisiveness or more tolerant of reasonable, even if mistaken, judgments than the protection of this nation and its people from further terrorist attacks in the immediate aftermath of the horrific events of 9/11.
The MDC Plaintiffs having been lawfully-arrested for, but not yet convicted of, violations of federal immigration law, their confinement status was that of pretrial detainees. The Fifth Amendment guarantee of substantive -due process does not permit pre-trial detainees to be subjected to confinement, or to restrictive conditions of confinement, “for the purpose of punishment.” Bell v. Wolfish,
To maintain a punitive confinement claim, then, a pre-trial detainee must plausibly plead that a defendant imposed restrictive confinement with the specific intent to punish. See id. Where, as here, plaintiffs propose for such intent to be implied, they must plead facts sufficient to admit a plausible inference that the challenged conditions of their confinement were “not reasonably related to a legitimate goal” but, rather, were “arbitrary or purposeless.” Id. at 539,
Further, as the Supreme Court recently explained in rejecting an earlier discriminatory confinement challenge to the very policy here at issue, plaintiffs cannot carry their pleading burden by alleging facts that admit only a “possibility” of defendants’ proscribed intent. Ashcroft v. Iqbal,
1. DOJ Defendants
The panel majority concludes — and I agree — that plaintiffs fail plausibly to plead that the DOJ hold-until-eleared policy, as applied ab initio to illegal aliens arrested in the course of the FBI’s 9/11 investigation, implies the DOJ Defendants’ punitive intent. The “obvious” and “more
Where I depart from the majority is in its determination that plaintiffs plausibly plead that the DOJ Defendants’ legitimate national security purpose transformed to proscribed punitive intent by November 2001, when they approved merger of the FBI New York detainee list with the INS national detainee list, thereby maintaining the MDC Plaintiffs in the ADMAX SHU pending FBI-CIA clearance without individualized suspicion of these aliens’ connection to terrorism. See Majority Op., ante at 238-39, 246. Much less can I agree that clearly established law alerted every reasonable official that such actions violated substantive due process.
First, insofar as the November 2001 lists-merger decision is the critical factor in the majority’s identification of a plausi
In concluding otherwise, the majority asserts that OIG identification of Levey as the lists-merger decisionmaker does not absolve Ashcroft of responsibility because the OIG appears not to have asked Ashcroft about his role in that decision. See Majority Op., ante at 242. To the extent this implies OIG negligence or oversight, that hardly supplies a factual basis for inferring Ashcroft’s responsibility. See Ashcroft v. Iqbal,
Nor can the majority infer Ashcroft’s responsibility simply by referencing “the importance of the merger and its implications for how [Ashcroft’s] lawful original [hold-until-cleared] order was being carried out.” Majority Op., ante at 242. Not only is the assertion conclusory, but also Ashcroft v. Iqbal holds that even facts “merely consistent with a defendant’s liability ... stop[ ] short of the line between possibility and plausibility.”
Insofar as the majority maintains that the OIG Report itself provides factual support for a plausible inference that Ashcroft, not Levey, was the ultimate merger decisionmaker, the conclusion does not bear close examination. For example, the majority highlights part of the OIG Report indicating that, at the same November 2
This reasoning is wholly speculative in assuming Levey’s equal discomfort with the CIA check and merger decisions. Moreover, the majority’s inference that Ashcroft was the consulted “senior official” is defeated by the very OIG Report on which it purports to rely. That report specifically identifies the person Levey consulted about continuing CIA checks: it was not Attorney General Ashcroft, but “David Laufman, the Deputy Attorney General’s Chief of Staff.” OIG Report 62. It was Lauftnan who advised Levey to continue the CIA checks. See id.
While that could end this discussion, I further note that the OIG Report does not, in fact, permit one to infer from Levey’s discomfort with canceling CIA checks on his own that he must have been equally uncomfortable with making the lists-merger decision. The OIG Report expressly states that Levey made the lists-merger decision “[a]t the conclusion of the [November 2] meeting” at which the subject was first raised to him. OIG Report 56. In short, there was no delay in Levey’s making of the merger decision for him.to consult with Ashcroft or anyone else, leaving the majority’s reasoning on this point wholly without any basis in fact.
The majority responds that because “the issue of the New York list was discovered in October 2001, ... surely it is plausible that Levey consulted with more senior officials, including Ashcroft, prior to [the November 2] meeting.” Majority Op., ante at 243^14 (emphasis in original). Even if this were an accurate account of events, it admits no more than a possibility that Levey consulted with anyone in the interim, much
Thus, the pleadings, even with incorporation of the OIG Report, do not “contain sufficient factual matter” plausibly to ascribe the lists-merger decision to the DOJ Defendants Ashcroft v. Iqbal,
Second, .even if plaintiffs could plausibly allege the DOJ Defendants’ responsibility for the merger decision — which they cannot — plaintiffs fail to plead that these defendants thereby intended for plaintiffs to be held in the MDC’s ADMAX SHU. The Complaint pleadings quoted at the start of the preceding point, see supra at 239^40, assert only that New York list detainees should be designated as “of interest” and held until cleared; they make no mention of any DOJ Defendant dictating aliens’ continued confinement in the ADMAX SHU, or even their awareness of that result. Indeed, after merger, most New York list detainees continued to be held in general confinement at the Passaic County Jail. See OIG.Report 111.
Moreover, the OIG Report’s detailed discussion of the lists-merger decision gives no indication that the issue of continued ' restrictive — as opposed to general— confinement informed the merger decision in any way. The Report explains that INS officials opposed merger because of “how it would look when [INS] statistics regarding the number of September 11 detainees doubled overnight.” OIG Report 55. The INS feared these high numbers would persist because of the time it was taking the FBI New York office to conduct clearance inquiries. The INS predicted that such
Third, as the district court observed in dismissing plaintiffs’ punitive confinement claim against the DOJ Defendants, plaintiffs do not- allege that these defendants “were even aware” of the challenged restrictive confinement conditions at the MDC. Turkmen III,
The first allegation, that FBI Director Mueller oversaw the vast 9/11 investigation from headquarters — as opposed to the investigation being run out of one or more field offices — says nothing to support an inference that Mueller would therefore have had personal knowledge as to the particular confinement conditions imposed by the BOP on MDC detainees. See Ashcroft v. Iqbal,
As to the second allegation-highlighted by the majority, even assuming arguendo that it might admit an inference that the DOJ Defendants received daily reports on the number of illegal aliens detained in the 9/11 investigation, and on facts about such
Nor do those parts of the OIG Report cited by the majority support a different conclusion. See Majority Op., ante at 239-40. A BOP official’s statement that “the Department [of Justice] was aware of the BOP’s decision to house the September 11 detainees in high-security sections in various BOP facilities,” OIG Report 19 (emphasis added), is too vague to ascribe personal awareness to the three DOJ Defendants in this case.
Insofar as the Attorney General’s Deputy Chief of Staff recalled “one allegation of prisoner mistreatment being called to the attention of the Attorney General,” id. at 20, a single complaint suggests rogue abuse, not the restrictive confinement policy at issue here. . Further, the Attorney General’s response was not to approve such conduct, but to call for a staff inquiry, hardly action implying punitive intent. See id.
.BOP Director Kathy Hawk Sawyer did tell the OIG of conversations she had in the weeks following 9/11 with the Deputy Attorney General’s Chief of Staff, David Laufman, and the Principal Associate Deputy Attorney General, Christopher Wray, in which these men expressed “concerns about detainees ability to communicate both with those outside the facility and with other inmates,” and urged the BOP to take “policies to their legal limit” to prevent such communication in order “to give officials investigating the detainees time to ‘do their job.’ ” Id. at 112-13. But statements by members of the Deputy Attorney General’s staff admit no more than a “possibility” that the Attorney General himself was aware of their content. Ashcroft v. Iqbal,
Fourth, even if plaintiffs’ allegations were sufficient to admit an inference that the DOJ Defendants knew that, as a consequence of the lists’ merger, MDC Plaintiffs would remain in restrictive confinement, that would be insufficient to imply the requisite specific intent. As the Supreme Court explained in Ashcroft v. Iqbal, “purposeful” conduct “requires more than intent as volition or intent as awareness of consequences.”
Fifth, plaintiffs fail in any event plausibly to allege facts admitting an inference that their continued MDC restrictive confinement after November 2001 was “arbitrary or purposeless” to any legitimate objective, so that plaintiffs’ real intent must have been punitive. Bell v. Wolfish,
This non-punitive motivation is no after-the-fact invention. The Supreme Court recognized it to motivate the entire vast investigation that followed 9/11 and pursuant to which plaintiffs were arrested and confined. See id. at 667,
The panel majority acknowledges that national security concerns “might well” have motivated defendants’ challenged actions, see Majority Op., ante at 264, including the merger decision on which it relies to deny dismissal to the DOJ Defendants, see id. at 244 (quoting Levey’s statement to OIG that, in merging lists, “he wanted to err on the side of caution so that a terrorist would not be released by mistake,” OIG Report 56). Indeed, the OIG Report specifically concludes that the merger decision “was supportable, given the desire not to release any alien who might be connected to the [9/11] attacks or
Whether a court, upon identifying an obvious non-punitive intent for challenged conduct, can nevertheless allow plaintiffs to pursue a substantive due process claim on a theory of implied punitive intent is not apparent. See, e.g., Ashcroft v. Iqbal,
In urging otherwise, the majority cites Bell v. Wolfish,
As for Iqbal v. Hasty, this court did not there place beyond dispute the need for individualized suspicion of terrorism to place 9/11 detainees in restrictive confinement. Indeed, that case made no mention of the lack of such suspicion in observing that “[t]he right of pretrial detainees to be free from punitive restraints was clearly established at the time of the events in question, and no reasonable officer could have thought that he could punish a detainee by subjecting him to the practices and conditions alleged by the Plaintiff.” Iqbal v. Hasty,
Meanwhile, considerable law indicates that individualized suspicion is generally not required to impose restrictive conditions of confinement on lawfully arrested detainees in pursuit of a legitimate security objective. Block v. Rutherford,
The reasoning of these cases applies with equal, if not more, force here where defendants had an obvious and legitimate interest in identifying anyone connected with the 9/11 attacks and in safeguarding the nation from further terrorist attacks. Because the attacks were carried out by Arab Muslim aliens who proclaimed themselves members of al Qaeda, it is “no surprise” that authorities focused their investigative and preventative attention on persons encountered in the course of the FBI’s 9/11 investigation, who were not lawfully in this country, and who fell within the same ethnic .and religious group as the hijackers or as those targeted for recruitment by al Qaeda. Ashcroft v. Iqbal,
In disputing that conclusion, the majority mischaracterizes this dissent to assert that “because the MDC Plaintiffs were, or appeared to be, members of the group— Arab or Muslim males — that were targeted for recruitment by al Qaeda, they may be held in the ADMAX SHU without any reasonable suspicion of terrorist activity.” Majority Op., ante at 245. I suggest no such thing. In fact, no plaintiff was “held” on anything less than probable cause, specifically, probable cause to think the alien was in violation of federal immigration laws. Moreover, the majority itself identifies no plausible constitutional claim against the DOJ Defendants for holding 9/11 detainees until they were cleared of terrorism connections — even though detainees were overwhelmingly Arab and Muslim, and detention continued after the lists-merger decision even without individualized suspicion of' terrorism for the New York list detainees. See Majority Op., ante at 238. Nor does it identify any precedent clearly establishing that substantive due process does not permit detention to be restrictive in such circumstances unless there is individualized suspicion of terrorist connections. It is in the absence of such precedent that I assert the DOJ Defendants are entitled to qualified immunity.
Nor do I suggest that government officials can “hold[ ] someone in the most restrictive conditions of confinement available simply because he happens to be — or, worse yet, appeared to be — Arab or Muslim.” Majority Op., ante at 248. Rather, as I explain in discussing plaintiffs’ equal .protection claim, the pleadings do not admit a plausible inference that the MDC Plaintiffs were restrictively confined because of their ethnicity or religion. See infra Part II.B.
The majority further misconstrues the dissent “to imply that once ‘national security’ concerns become a reason for holding someone,” there is no need to consider whether restrictive conditions reasonably relate to that objective. See Majority Op., ante at 244. Not so. Bell v. Wolfish makes plain that neither confinement, nor any condition of confinement, can be imposed on pre-trial detainees for the -purpose of punishment. See
To explain, isolating the 9/11 detainees confined at the MDC from one another and from the outside world while clearance investigations were conducted ensured that — in the event detainees were found to have terrorist connections — they would not have been able to communicate in ways that either farthered terrorist plans or
With the benefit — or handicap — of hindsight, persons might now debate how well the challenged restrictive confinement policy at the MDC served national security interests.
2. MDC Defendants
By contrast to the DOJ Defendants, MDC Defendants Hasty and Sherman were personally involved in the MDC Plaintiffs’ restrictive ^confinement in the ADMAX SHU both before and after the November 2001 merger decision.
First, plaintiffs’ pleadings do not admit a plausible inference that Hasty and Sherman imposed restrictive conditions of confinement without any supporting information or assessment of propriety. As to the latter, the OIG Report recounts that, immediately after the 9/11 attacks, BOP Headquarters ordered that “all detainees who were ‘convicted of, charged with, associated with, or in any way linked to terrorist activities’ ... be placed in the highest level of restrictive detention.” OIG Report 112. A plausible inference of punitive intent cannot reasonably be drawn from the MDC Defendants’ carrying out this order without making an independent assessment of its categorical need. The obvious and more likely motivation for their doing so is national and prison security. Defendants reasonably deferred to then-superiors’ assessment that, in the aftermath of a devastating terrorist attack, lawfully arrested illegal aliens, whom the FBI and CIA were investigating for possible terrorist connections, should be kept “in the most secure conditions available until the suspects could be cleared of terrorist activity.” Ashcroft v. Iqbal,
Further, because it is undisputed that the FBI had designated each MDC Plaintiff as a person “of high interest,” or “of interest” in their ongoing terrorism investigation, and that BOP employees relied on this designation in imposing restrictive confinement, see, e.g., Compl. ¶¶ 1-2, 4; see also OIG Report 111-12, 126, 158, it cannot be said that the MDC Defendants acted without any' information so as to admit an inference that their conduct was arbitrary or purposeless. See generally Martinez v. Simonetti,
Second, insofar as plaintiffs fault the MDC Defendants for maintaining them in restrictive confinement even after learning that the FBI’s designations were not based on individualized suspicion, I have already explained with reference to the DOJ Defendants why established precedent does not support that conclusion, much less
Iqbal v. Hasty,
Accordingly, I would dismiss plaintiffs’ policy-challenging punitive confinement claim against the MDC Defendants, as well as the DOJ Defendants, on grounds of qualified immunity.
C. Discriminatory Confinement
To state a Fifth Amendment claim for discriminatory confinement, a plaintiff must plead sufficient factual matter to show that defendants adopted the challenged restrictive confinement policy not for a neutral reason “but for the purpose of discriminating on account of race, religion, or national origin.” Ashcroft v. Iqbal,
One might have thought that put plaintiffs’ policy-challenging claims of discrimi
The pleadings the majority cites to support this conclusion as to both the DOJ and MDC Defendants can be summarized as follows: (1) the New York FBI office expressly relied on race, religion, ethnicity, and national origin in targeting persons identified in their 9/11 investigation for detention; (2) the DOJ Defendants were aware of and condoned such discriminatory intent by merging the New York FBI detainee list with the INS national detainee list, knowing that the former list was not supported by individualized suspicion of a terrorist threat; (3) the MDC Defendants also knew there was no individualized suspicion tying the aforementioned detainees to terrorism when they confined them in the ADMAX SHU; and (4) the MDC Defendants falsely reported that MDC staff had classified the ADMAX SHU detainees as “high security” based on an individualized assessment when no such assessment was ever conducted. See id. at 244-47. I am not persuaded.
First, the amended complaint’s pleadings of purposeful FBI discrimination are not materially different from those considered in Ashcroft v. Iqbal. See
Not insignificantly, in reaching this conclusion, the Supreme Court acknowledged that it was the perpetrators of the 9/11 attacks who injected religion and ethnicity into the government’s investigative and preventative "efforts. The Court stated that the attacks “were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim — Osama bin Laden — and composed in large part of his Arab Muslim disciples.” Id. at' 682,
Second, the DOJ Defendants’ purported involvement with the lists-merger decision also cannot imply these defendarits’ discriminatory intent. As I have already explained with respect to punitive intent, plaintiffs fail plausibly to plead these defendants’ involvement with that decision. See supra at 228-42.
In any event, the merger decision — by whomever made — applied equally to all New York list detainees, the larger number of whom were not subjected to restrictive confinement, but housed in general prison population at the Passaic County Jail, even though they shared the same racial, religious, and national identities as the MDC Plaintiffs. See supra at 242-43. Such circumstances do not permit discriminatory intent plausibly to be inferred from the merger decision. See generally O’Connor v. Consol. Coin Caterers Corp.,
In concluding otherwise, the majority dismisses the Passaic assignments as a “red herring.” Majority Op., ante at 242. The label will not stick. The reality that most Arab Muslim detainees on the New York list were not held in restrictive confinement precludes a plausible inference that arresting FBI agents were intent on discriminating against Arab Muslims in assigning a .minority of New York detainees to the MDC. Thus, even if the lists-merger decision can be understood to manifest the DOJ Defendants’ “deference to others’ designation of detainees for particular facilities,” id. at 256, that is not a factual basis for plausibly inferring their discriminatory intent against MDC detainees. To overcome this hurdle, the majority parenthetically suggests that “for all [the DOJ Defendants’] knew, all” New York list detainees were held in restrictive confinement. Id. This is, again, pure speculation. Moreover, because the facts are to the contrary, a plaintiff (or a panel majority) looking to locate invidious intent in defendants’ possible misunderstanding of the confinement circumstances surely needs to identify some factual basis for its hypothesis. See Ashcroft v. Iqbal,
In sum, plaintiffs fail plausibly to plead either that DOJ Defendants were responsible for the lists-merger decision or that the decision was animated by discriminatory intent.
Third, allegations that the DOJ and MDC Defendants maintained the challenged restrictive confinement after learning that the FBI designations were not based on individualized suspicion of terrorist threats are also inadequate to conclude that defendants were “not more likely” concerned with ensuring national and prison security. Majority Op., ante at 299. Indeed, the conclusion is foreclosed by Ashcroft v. Iqbal,
In any event, and as already explained, courts have upheld the imposition of restrictive conditions of confinement on lawfully arrested persons without requiring individualized suspicion of a security threat, recognizing both the difficulty in identifying which detainees pose the particular risk needing to be addressed, and the serious harm that can ensue from a failure to do so. See supra at 247-48. Thus, no clearly established law would have alerted reasonable officials that restrictive confinement without individualized suspicion was unconstitutionally punitive or discriminatory in the circumstances presented here.
Fourth, allegations that the MDC Defendants (1) failed to follow BOP procedures requiring “individualized determination of dangerousness or risk” for restrictive confinement, and (2) approved documents falsely representing that such determinations had been made, also do not render it “not more likely” that the challenged conduct was motivated by national security. See Majority Op., ante at 256. This court has already granted qualified immunity to some of these same MDC Defendants on a procedural due process challenge to their failure to follow BOP procedures in connection with the same challenged- confinement. See Iqbal v. Hasty,
The fact that plaintiffs here use procedural failures to imply discriminatory intent rather than to assert a denial of procedural due process warrants no different qualified immunity conclusion. As the OIG Report indicates, by October 1, 2001, BOP Headquarters had effectively ceded “individualized” risk assessment responsibility for 9/11 detainees to the FBI. A memorandum of that date from Michael Cooksey, the BOP Assistant Director for Correctional Programs, “directed all BOP staff, including staff at the MDC, to continue holding September 11 detainees in the most restrictive conditions of confinement possible until the detainees could be ‘reviewed on a case-by-case basis by the FBI and cleared of any involvement in or knowledge of on-going' terrorist activities.’ ” OIG’ Report 116 (quoting Cooksey’s October 1, 2001 memorandum). In these circumstances, even if the MDC Defendants might be faulted for approving documents suggesting individualized risk as
In sum, as to both the DOJ and MDC Defendants, the pleadings highlighted by the majority are insufficient to render “not more likely” what the Supreme Court in Ashcroft v. Iqbal held “obvious” and “more likely”: MDC Plaintiffs were restrictively confined pending FBI-CIA clearance for the legitimate purpose of ensuring national security.
D. Fourth Amendment Claim
As the majority acknowledges, plaintiffs do not assert that the Fourth Amendment absolutely prohibited them from being strip-searched while incarcerated at the MDC. See Majority Op., ante at 258. Rather, plaintiffs contend that the frequency with which they were strip searched — every time they were removed from or returned to their cells, or randomly even when not so moved, “even when they had no conceivable opportunity to obtain contraband” — was constitutionally unreasonable. Compl. ¶ 112. They further allege that the manner in which they were strip searched — with female officers present or in view of other prisoners and staff, with prohibited videotaping, or with humiliating comments — was unconstitutional. See id. ¶¶ 112-15.'
Insofar as plaintiffs seek damages from MDC Defendants Hasty and Sherman for the challenged strip search policy, Ashcroft v. Iqbal does not admit a theory of supervisory liability on a Bivens claim. See
The majority nevertheless concludes that plaintiffs carry their Iqbal pleading burden by alleging that (1) “Hasty ordered [MDC Captain] Lopresti and Cuciti to design extremely restrictive conditions of confinement,” which were “then approved and implemented by Hasty and Sherman,” id. ¶ 75; and (2) many of the strip searches “were documented in a ‘visual search log’ created by MDC staff for review by MDC management, including Hasty,” id. ¶ 114. The majority holds that these pleadings are sufficient to allege
First, insofar as plaintiffs challenge the frequency of the strip searches, it is their burden to plead facts sufficient to demonstrate that the challenged policy lacked a rational relationship to a legitimate government objective, specifically, prison security. See Turner v. Safley,
Plaintiffs assert that they were strip searched “even when they had no conceivable opportunity to obtain contraband.” Compl. ¶ 112. The conclusion borrows from Hodges v. Stanley, a case in which this court reinstated a complaint challenging a second strip search under eircum-stances where “it seems clear that there was no possibility that Hodges could have obtained and concealed contraband.”
I would thus grant Hasty and Sherman dismissal of the MDC Plaintiffs’ Fourth Amendment claim on the ground of qualified immunity.
* * *
In sum, I respectfully dissent from the judgment entered on appeal in this case insofar as it allows the MDC Plaintiffs to pursue money damages on policy-challenging Fifth Amendment claims for punitive and discriminatory confinement against defendants Ashcroft, Mueller, Ziglar, Hasty, and Sherman, and an attendant policy-challenging Fourth Amendment claim for unreasonable strip searches against defendants Hasty and Sherman. I conclude that no established Bivens action is available for plaintiffs to pursue these claims and that significant factors counsel hesitation in extending Bivens to an action challenging executive policy pertaining to immigration and national security made in a time of crisis. In any event, I would grant defendants’ motions for dismissal on grounds of qualified immunity because plaintiffs fail either to plead plausible constitutional violations or to demonstrate that clearly established law would have alerted every reasonable official that the challenged actions were unlawful.
. In concluding its opinion, the majority asserts that plaintiffs’ claims cannot be dismissed because "[i]f there is one guiding principle to our nation it is the rule of law.” Majority Op., ante at 264. The rule of law, however, is embodied not only in amendments to the Constitution, but also, and first, in that document’s foundational structure of separated powers. See 1 Annals of Cong. 581 (1789) (reporting Madison’s statement in first Congress that "if there is a principle in our Constitution, indeed in any free Constitution, more sacred than another, it is that which separates the Legislative, Executive, and Judicial powers”); see also Mass. Const, of 1780, Part the First, art. XXX (John Adams) (separating powers ’"to the end it may be a government of laws, and not of men”); Bowsher v. Synar,
It is also the rule of law — to which both sides in a lawsuit have a right — that requires a court to consider whether certain defenses, such as qualified immunity, shield a particular defendant in any event from a suit for damages. See, e.g., Pearson v. Callahan,
Thus, the rule of law animates this dissent no less than the majority opinion.
. I concur in the panel judgment dismissing plaintiffs’ Free Exercise challenge. See Majority Op., ante at 236-37. Not only has the Supreme Court consistently declined to extend a Bivens remedy to a First Amendment claim in any context, see, e.g., Ashcroft v. Iqbal,
. I dissent from the majority's allowance of Bivens claims against both the DOJ and the MDC Defendants even though the former group, having secured dismissal on other grounds in the district court, did not renew their Bivens challenge in defending that judgment on appeal. No matter. We can affirm on any ground supported by the record, see Lotes Co. v. Hon Hai Precision Indus. Co.,
.In pronouncing the national security challenges following the 9/11 attacks irrelevant to a Bivens context determination, the majority cites Iqbal v. Hasty,
. When, in Bell v. Wolfish, the Supreme Court discussed the substantive due process prohibition on punitive pre-trial confinement, it did so on a petition for a writ of habeas corpus, not in a Bivens action. See
. This court has already dismissed procedural due process challenges to the confinement policy here at issue on grounds of qualified immunity. See Iqbal v. Hasty,
.The majority cites two cases — not controlling on this court — that allowed federal detainees to pursue a Bivens remedy for restrictive confinement. See Bistrian v. Levi,
Insofar as the majority cites the dissenting opinion in Arar for the proposition that this court has "presumed the availability of a Bivens remedy for substantive due process claims,” Majority Op., ante at 235 n. 15 (citing Arar,
. See The 9111 Commission Report, Final Report of the National Commission on Terrorist Attacks upon the United States (“9/11 Report”) 333 (2004), available at http://Lusa.gOv/l AMX004 (detailing President’s written assignment of responsibility for homeland security after 9/11 to Attorney General Ashcroft, FBI Director Mueller, and CIA Director George Tenet); see also Jack Goldsmith, The Terror Presidency 75 (2007) (recounting that, at September 12, 2001 meeting of National Security Council, President Bush told Attorney General Ashcroft, “ ‘Don’t ever let this happen again,’ ” a "simple sentence” that "set the tone for everything Ashcroft's Justice Department would do in the aftermath of 9/11”).
. See Authorization for Use of Military Force, Pub.L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001).
. See 9/11 Report 330 (identifying Attorney General and FBI Director, along with Vice President, Secretaries of State and Defense, Chairman and Vice-Chairman of Joint Chiefs, National Security Advisor, CIA Director, and President’s Chief of Staff, as "top advisers” convened by President on night of 9/11 and subsequently denominated by him as his “war council” in responding to terrorist attacks).
. In Ponzi v. Fessenden,
. The majority locates evidence of .disagreement between the FBI and INS with respect to the MDC Plaintiffs' continued restrictive confinement in the ADMAX SHU in an OIG Report's account of a November 2, 2001 meeting. See Dep’t of Justice, Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks ("OIQ Report”) 55-56 (April 2003), available at http://Lusa.gov/lygkjKg. This is misleading. As I explain infra at 52-53, the OIG Report makes plain that the disagreement voiced by FBI and INS representatives at that meeting pertained not to whether illegal aliens de
. See also Goldsmith, The Terror Presidency 71-74 (describing “threat matrix” provided daily to President and select officials, including Attorney General and FBI Director).
. See, e.g., 9/11 Report 227-29 (reporting how, when 9/11 hijackers Mohamed Atta and Marwan al Shehhi encountered difficulty reentering United States in January 2001 without presenting student visas, they nevertheless persuaded INS inspectors to admit them so that they could continue flight training).
. Previous al Qaeda attacks included (1) the 1993 World Trade Center bombing (six deaths); (2) the thwarted 1993 conspiracy to bomb New York City landmarks' led by the "Blind Sheikh,” Omar Abdel Rahman; (3) the thwarted 1995 plot to explode American commercial airplanes over the Pacific Ocean, led by Ramzi Yousef; (4) the 1996 bombing of an apartment complex housing United States Air Force personnel in Khobar, Saudi Arabia (19 deaths); (5) the 1998 bombings of United States embassies in Tanzania and Kenya (224 deaths); (6) the thwarted millennial bombing of Los Angeles International Airport; and (7) the 2000 bombing of the U.S.S. Cole (17 deaths). See United States v. Farhane,
. See, e.g., 9/11 Report 177-78 (discussing how conspirators in Los Angeles Airport plot followed “a familiar terrorist pattern” of using “fraudulent passports and immigration fraud to travel” in furtherance of their scheme).
. See, e.g., infra at 292-93 (discussing prison actions of Omar Abdel Rahman and Mam-douh Mahmud Salim).
. Among these events were (1) the September 18, 2001 transmittal of anthrax in letters sent to various government and media offices, killing five, and infecting 17; (2) the mysterious November 12, 2001 crash of an American Airlines plane soon after takeoff from John F. Kennedy Airport, killing all onboard; (3) the thwarted December 22, 2001'attempt by Richard Reid to detonate a shoe bomb onboard an American Airlines plane traveling from Paris to Miami; and (4) the January 2002 kidnapping, and February 2002 beheading of Wall Street Journal reporter Daniel Pearl in Pakistan. Subsequent investigation would link the last two events to al Qaeda, with 9/11 mastermind Khalid Sheikh Mohammed claiming particular credit for the Pearl murder. See Peter Finn, Khalid Sheik Mohammed killed U.S. Journalist Daniel Pearl, report finds, Wash. Post, Jan. 20, 2011, http://wapo. st/NyvICX; Pam Belluck, Threats and Responses: The Bomb Plot; Unrepentant Shoe Bomber Is Given a Life Sentence For Trying to Blow Up Jet, N.Y. Times, Jan. 31, 2003, http:// nyti.ms/ZhFZJF.
. Were Congress to afford compensatory relief in the circumstances at issue, it is hardly obvious that it would place the burden on individual officials rather than the sovereign on whose behalf they acted. See generally John Paul Stevens, Reflections About the Sovereign’s Duty to Compensate Victims Harmed by Constitutional Violations, Lawyers for Civil Justice Membership Meeting ("Stevens Reflections”) 11 (May 4, 2015), available at http://l. usa.gov/llh51e4 (proposing that "sovereign, rather than its individual agents,” compensate any persons whose rights were violated in course of 9/11 investigation).
. See, e.g., Dep’t of Justice Oversight: Preserving Our Freedoms While Defending Against Terrorism: Hearing Befpre the S. Comm, on the Judiciary, 107th Cong. 312 (Dec. 6, 2001) (statement of John Ashcroft, Att'y Gen. of the United States) (explaining "deliberate campaign of arrest and detention to remove suspected terrorists who violate the law from our streets,” noting that “INS has detained 563 individuals on immigration violations” and that BOP had "acted swiftly to intensify security precautions in connection with al Qaeda and other terrorist inmates,” and adding that DOJ "has briefed members of the House, the Senate and their staffs on more than 100 occasions”).
. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("PATRIOT Act”), Pub.L. No. 107-56, § 1001, 115 Stat. 272, 391 (2001).
. See, e.g., Oversight Hearing: Law Enforcement and Terrorism: Hearing Before the S. Comm, on the Judiciary, 108th Cong. 192 (July 23, 2003) (questioning by Sen. Patrick Leahy of FBI Director Mueller about OIG report "alleging, among other things, the abuse of immigrants being held in Federal custody,” particularly “Muslim and Arab immigrants being held on civil violations of our immigration laws”).
. See Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015 ("USA FREEDOM Act”), Pub.L. No. 114-23, 129 Stat. 268 (2015); PATRIOT Sunsets Extension Act of 2011, Pub.L. No. 112-14, 125 Stat. 216 (2011); Act to Extend Expiring Provisions of the USA PATRIOT Improvement and Reau-thorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 28, 201J, Pub.L. No. 111-141, 124 Stat. 37 (2010); USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, Pub.L. No. 109-178, 120 Stat. 278 (2006); USA PATRIOT Improvement and Reauthorization Act of 2005, Pub.L. No. 109-177, 120 Stat. 192 (2005).
. MDC Plaintiff Baloch was among the illegal aliens arrested in the 9/11 investigation who filed a habeas petition to challenge his confinement. See Turkmen v. Ashcroft, No. 02 CV 2307(JG),
The Ninth Circuit has cited the availability of a habeas remedy (and plaintiffs' pursuit of such relief) as a factor counseling hesitation in extending Bivens to claims of unlawful detention. See Mirmehdi v. United States,
. The Supreme Court’s recent repeated unanimous awards of qualified immunity emphasize the narrow circumstances in which government officials may be held personally liable for their actions in suits for money damages. See, e.g., Taylor v. Barkes,-U.S. -,
. See generally Stevens Reflections 9 (advocating absolute immunity for "dedicated public officials” — including Ashcroft and Mueller — who, in aftermath of 9/11, were "attempting to minimize the risk of another terrorist attack,” while proposing that federal government assume responsibility for compensating any persons whose rights were violated).
. Plaintiffs themselves never raised this lists-merger theory, either in their briefs to this court or in the district court. The majority, however, views merger of the New York and national lists as the critical event because it construes the pleadings to allege that “illegal aliens were being detained in punitive conditions of confinement in New York” with “no suggestion that those detainees were tied to terrorism except for the fact that they were, or were perceived to be Arab or Muslim.” Majority Op., ante at 237-38. This is not apparent in the record.
For example, when MDC Plaintiff Purna Raj Bajracharya was placed in restrictive confinement, federal officials knew that, approximately two weeks before the 9/11 attacks, he had been observed videotaping a Queens building that housed both a New York FBI unit and the Queens County District Attorney’s Office. See id. at 230. They further knew that when Bajracharya — who had lived illegally in the United States for five years— was questioned about this conduct, he falsely claimed to be a tourist. . While these circumstances did not conclusively link Bajracharya to terrorism, no more so did Zacarías Mous-saoui’s pre-9/11 interest in flight simulator training for large jets. What both circumstances did provide, however, was individualized suspicion for investigating these mens' ties to terrorism, which in Moussaoui's case led to his conviction for participation in the 9/11 conspiracy. See United States v. Moussaoui,
Further, New York list detainees were not uniformly detained in "punitive” conditions— by which I understand the majority to be referring to highly restrictive conditions of confinement rather than to the intent with which such restrictions were imposed. Much less were they so confined for no reason other than ethnicity or religion. This is evident from the fact that the vast majority of the approximately 300 persons on the New York list at the time of the merger decision were Arab or Muslim. Nevertheless, no more than 84 detainees were ever restrictively confined in the ADMAX SHU. See OIG Report 2, 22, 111. The remainder were held in general confinement at the Passaic County Jail. The designation difference appears generally to have been based on whether an arrested illegal alien was designated "high interest,” “of interest,” or "interest undetermined” to the 9/11 investigation. See OIG Report 18, 111 (explaining that arrested illegal aliens in first category were generally held in high security confinement at MDC, while persons in latter two categories were generally held in less restrictive confinement at Passaic County Jail). Nevertheless, because the OIG Report provides no specifics on this point, and because plaintiffs allege that some of them were detained at the MDC "even though they had not been classified 'high interest,' " Fourth Am. Compl. ¶ 4. I do not pursue the matter further. Rather, I proceed to explain why plaintiffs fail, even under the majority's lists-merger theory, plausibly to plead a claim for punitive (or discriminatoiy) confinement, much less one supported by clearly established law.
. The majority responds that I mistakenly treat "the OIG- reports as a repository of all ... facts” relevant to plaintiffs’ claims, "measuring] plausibility by the absence or presence of fact-findings” in these reports. See Majority Op., ante at 242. Not so. It is plaintiffs who support their pleadings by incorporating the OIG Reports. And it is the majority that maintains that statements in (or in the instant example, an omission from) the OIG Report, reasonably establish the plausibility of plaintiffs’ claims. I herein demonstrate only why no “factual matter” supports such a conclusion. Ashcroft v. Iqbal,
. The majority can hardly have overlooked the OIG’s identification of Laufman because it occurs in the very sentence of the Report that the majority quotes (in part) about Levey’s continuing discomfort with making a CIA check decision in late November 2001. See OIG Report 62.
. In another footnote, the majority further asserts that Levey's communication with Ashcroft about the lists-merger decision, and Ashcroft’s approval of the merger, find support in Ziglar’s statement to the OIG that “he [¿.e., Ziglar] contacted the Attorney General’s Office on November 7, 2001 [t.e., five days after Levey had already made the merger decision], to discuss concerns about the clearance process, especially the impact of adding the New York cases to the INS Custody list.” OIG Report 66. But the OIG Report makes clear that who Ziglar called was not Ashcroft himself, but his Chief of Staff, and that the person he in fact spoke with was Deputy Chief of Staff David Israelite. Id. at 66-67. Further, when Ziglar’s quoted statement is read in the context of preceding and subsequent paragraphs, it is plain that his concerns related only to the “slow pace” of the FBI’s clearance process, not to the conditions of confinement for New York list detainees held at the MDC. Id. These facts cannot admit a plausible inference that Ashcroft made the merger decision, much less that he made it for a punitive purpose.
. At the same time that the OIG Report criticized the slow pace of FBI clearance, it acknowledged that the FBI New York office was under enormous pressure after the 9/11 attacks, both in investigating that event and in preventing future attacks. The New York office had by far the most leads to pursue, in the course of which it encountered the most illegal aliens. See OIG Report 2, 22 (indicating that, of the 762 illegal aliens arrested during the 9/11 investigation nationwide through August 6, 2002, 491 were arrested in New York).
. Indeed, the OIG Report indicates that a number of DOJ witnesses — including Michael Chertoff, the Assistant Attorney General in charge of the Criminal Division; his Deputy Alice Fisher, who oversaw terrorism issues in the division; David Israelite, the Deputy Chief of Staff to the Attorney General; and Southern District of New York Deputy U.S. Attorney David Kelley, the lead prosecutor on the 9/11 investigation — stated that they either had “no information” or "no input” into where detainees would be held or the conditions of their confinement at the various BOP facilities. Id. at 20.
. For the same reasons that I think pleadings related to the lists-merger decision do not admit a plausible inference that the DOJ Defendants knew of the particular restrictive conditions of confinement at the MDC, I do not think they admit a plausible inference that the DOJ Defendants knew that such conditions were being imposed without individualized suspicion of terrorist connections.
. The majority attempts to distinguish these cases by saying that, in each, the Supreme Court did not state that individualized suspicion was not required but, rather, determined that the challenged restrictions reasonably related to the legitimate object of prison security. See Majority Op., ante at 245-46 n. 31. The reasoning is perplexing. Implicit in the rejection of challenges to generally applicable restrictive conditions of confinement is the conclusion that no individualized suspicion was necessary for the condition reasonably to relate to the legitimate object of prison security. In any event, the majority points to no case holding a generally applicable restrictive condition to fail the reasonably related inquiry for lack of individualized suspicion, and certainly not one doing so in the context of a condition whose professed object is national security.
. See infra at 249 (discussing actions of Omar Abdel Rahman and Mamdouh Mahmud Salim while incarcerated).
. See supra at 233 & n. 19 (detailing anthrax scare, airliner crash, shoe bomb attempt, and journalist beheading, all within five months of 9/11 attacks).
. See 9/11 Report 339 (cautioning, with respect to judging actions leading and responding to 9/11 attacks, that hindsight can both make things seem "crystal clear” that at relevant time were “obscure and pregnant with conflicting meanings,” and make it “harder to reimagine” the "preoccupations and uncertainty” of a past time as memories “become colored” by knowledge of what happened and was written later).
. The decision to impose strict restrictive confinement was apparently made at the headquarters level of the BOP, see OIG Re
. Indeed, when reviewing Turkmen I in light of Ashcroft v. Iqbal, we vacated the district court’s decision and remanded “for further proceedings consistent with the standard articulated in Twombly and Iqbal." Turkmen II,
. This dissent does not pertain to plaintiffs’ non-policy claims of "unofficial abuse” against the MDC Defendants.
. In recently forbidding investigative stereotyping, the Department of Justice nevertheless stated that, “in conducting activities directed at a specific criminal organization or terrorist group whose membership has been identified as overwhelmingly possessing a listed characteristic, law enforcement should not be expected to disregard such facts in taking investigative or preventive steps aimed at the organizations' activities.” U.S. Dep’t of Justice, Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity 4 (Dec. 2014), available at http://l-usa.gov/lytxRoa.
. In discussing the actions of the New York FBI office- — and particularly its maintenance of its own list of 9/11 detainees — the OIG and the majority reference that office's tradition of independence from headquarters. See Majority Op., ante at 232 n. 12 (citing OIG Report 54). Such independence does not plausibly imply rogue conduct. To the contrary, in the years before 9/11, the New York FBI office led the nation’s pursuit of Islamic terrorism, as is evident in a number of exemplary investigations. See, e.g., 9/11 Report 72 (commending "superb investigative and pros-ecutorial effort” of New York FBI and U.S! Attorney's Office in identifying and convicting perpetrators of first World Trade Center attack, as well as the “Blind Sheikh” and Ram-zi Yousef); see also In re Terrorist Bombings of U.S. Embassies in E. Africa,
. The majority recognizes that the precedent cited herein undermines plaintiffs’ equal protection claim, but it maintains that these holdings properly apply on summary judgment review, not dismissal. See Majority Op., ante at 256 n. 39. Bell Atlantic Corp. v. Twombly,
. The lists-merger pleadings support no different conclusion for reasons just discussed. See Majority Op., ante at 255-56.
. Because I would dismiss plaintiffs' equal protection claims, I would also dismiss their § 1985 claims. See Griffin v. Breckenridge,
. The majority’s reliance on Iqbal v. Hasty,
So too is its citation to N.G. v. Connecticut,
Even if such a conclusion were possible, however, N.G. was not decided until 2004. Thus, the majority can hardly rely on that decision as the clearly established law that, in late 2001, put beyond debate that the strip-search policy here at issue violated the Fourth Amendment;