NOTICE: This opinion is subject to
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															SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 15–1358, 15–1359 and 15–1363

															_________________

															JAMES W. ZIGLAR, PETITIONER

															15–1358 v. AHMER IQBAL ABBASI, et al.

															JOHN D. ASHCROFT, FORMER
ATTORNEYGENERAL, et al., PETITIONERS

															15–1359 v. AHMER IQBAL ABBASI, et al.

															DENNIS HASTY, et al.,
PETITIONERS

															15–1363 v. AHMER IQBAL ABBASI, et al.

															on writs of certiorari to the united states
court of appeals for the second circuit

															[June 19, 2017]

															Justice Kennedy delivered the opinion of the
Court, except as to Part IV–B.

															After the September 11 terrorist attacks in this
country, and in response to the deaths, destruction, and dangers
they caused, the United States Government ordered hundreds of
illegal aliens to be taken into custody and held. Pending a
determination whether a particular detainee had connections to
terrorism, the custody, under harsh conditions to be described,
continued. In many instances custody lasted for days and weeks,
then stretching into months. Later, some of the aliens who had been
detained filed suit, leading to the cases now before the Court.

															The complaint named as defendants three high
executive officers in the Department of Justice and two of the
wardens at the facility where the detainees had been held. Most of
the claims, alleging various constitutional violations, sought
damages under the implied cause of action theory adopted by this
Court in Bivens v. Six Unknown Fed. Narcotics Agents ,
403 U. S. 388 (1971) . Another claim in the complaint was
based upon the statutory cause of action authorized and created by
Congress under Rev. Stat. §1980, 42 U. S. C. §1985(3).
This statutory cause of action allows damages to persons injured by
conspiracies to deprive them of the equal protection of the
laws.

															The suit was commenced in the United States
District Court for the Eastern District of New York. After this
Court’s decision in Ashcroft v. Iqbal , 556 U. S.
662 (2009) , a fourth amended complaint was filed; and that is the
complaint to be considered here. Motions to dismiss the fourth
amended complaint were denied as to some defendants and granted as
to others. These rulings were the subject of interlocutory appeals
to the United States Court of Appeals for the Second Circuit. Over
a dissenting opinion by Judge Raggi with respect to the decision of
the three-judge panel—and a second unsigned dissent from the
court’s declining to rehear the suit en banc, joined by Judge Raggi
and five other judges—the Court of Appeals ruled that the complaint
was sufficient for the action to proceed against the named
officials who are now before us. See Turkmen v. Hasty , 789 F. 3d 218 (2015) (panel decision); Turkmen v. Hasty , 808 F. 3d 197 (2015) (en banc
decision).

															The Court granted certiorari to consider these
rulings. 580 U. S. ___ (2016). The officials who must defend
the suit on the merits, under the ruling of the Court of Appeals,
are the petitioners here. The former detainees who seek relief
under the fourth amended complaint are the respondents. The various
claims and theories advanced for recovery, and the grounds asserted
for their dismissal as insufficient as a matter of law, will be
addressed in turn.

															I

															Given the present procedural posture of the
suit, the Court accepts as true the facts alleged in the complaint.
See Iqbal , 556 U. S., at 678.

															A

															In the weeks following the September 11, 2001,
terrorist attacks—the worst in American history—the Federal Bureau
of Investigation (FBI) received more than 96,000 tips from members
of the public. See id., at 667. Some tips were based on
well-grounded suspicion of terrorist activity, but many others may
have been based on fear of Arabs and Muslims. FBI agents
“questioned more than 1,000 people with suspected links to the
[September 11] attacks in particular or to terrorism in general.” Ibid .

															While investigating the tips—including the less
substantiated ones—the FBI encountered many aliens who were present
in this country without legal authorization. As a result, more than
700 individuals were arrested and detained on immigration charges. Ibid. If the FBI designated an alien as not being “of
interest” to the investigation, then he or she was processed
according to normal procedures. In other words the alien was
treated just as if, for example, he or she had been arrested at the
border after an illegal entry. If, however, the FBI designated an
alien as “of interest” to the investigation, or if it had doubts
about the proper designation in a particular case, the alien was
detained subject to a “hold-until-cleared policy.” The aliens were
held without bail.

															Respondents were among some 84 aliens who were
subject to the hold-until-cleared policy and detained at the
Metropolitan Detention Center (MDC) in Brooklyn, New York. They
were held in the Administrative Maximum Special Housing Unit (or
Unit) of the MDC. The complaint includes these allegations:
Conditions in the Unit were harsh. Pursuant to official Bureau of
Prisons policy, detainees were held in “ ‘tiny cells for over
23 hours a day.’ ” 789 F. 3d, at 228. Lights in the cells
were left on 24 hours. Detainees had little opportunity for
exercise or recreation. They were forbidden to keep anything in
their cells, even basic hygiene products such as soap or a
toothbrush. When removed from the cells for any reason, they were
shackled and escorted by four guards. They were denied access to
most forms of communication with the outside world. And they were
strip searched often—any time they were moved, as well as at random
in their cells.

															Some of the harsh conditions in the Unit were
not imposed pursuant to official policy. According to the
complaint, prison guards engaged in a pattern of “physical and
verbal abuse.” Ibid. Guards allegedly slammed detainees into
walls; twisted their arms, wrists, and fingers; broke their bones;
referred to them as terrorists; threatened them with violence;
subjected them to humiliating sexual comments; and insulted their
religion.

															B

															Respondents are six men of Arab or South Asian
descent. Five are Muslims. Each was illegally in this country,
arrested during the course of the September 11 investigation, and
detained in the Administrative Maximum Special Housing Unit for
periods ranging from three to eight months. After being released
respondents were removed from the United States.

															Respondents then sued on their own behalf, and
on behalf of a putative class, seeking compensatory and punitive
damages, attorney’s fees, and costs. Respondents, it seems fair to
conclude from the arguments presented, acknowledge that in the
ordinary course aliens who are present in the United States without
legal authorization can be detained for some period of time. But
here the challenge is to the conditions of their confinement and
the reasons or motives for imposing those conditions. The gravamen
of their claims was that the Government had no reason to suspect
them of any connection to terrorism, and thus had no legitimate
reason to hold them for so long in these harsh conditions.

															As relevant here, respondents sued two groups of
federal officials in their official capacities. The first group
consisted of former Attorney General John Ashcroft, former FBI
Director Robert Mueller, and former Immigration and Naturalization
Service Commissioner James Ziglar. This opinion refers to these
three petitioners as the “Executive Officials.” The other
petitioners named in the complaint were the MDC’s warden, Dennis
Hasty, and associate warden, James Sherman. This opinion refers to
these two petitioners as the “Wardens.”

															Seeking to invoke the Court’s decision in Bivens , respondents brought four claims under the
Constitution itself. First, respondents alleged that petitioners
detained them in harsh pretrial conditions for a punitive purpose,
in violation of the substantive due process component of the Fifth
Amendment. Second, respondents alleged that petitioners detained
them in harsh conditions because of their actual or apparent race,
religion, or national origin, in violation of the equal protection
component of the Fifth Amendment. Third, respondents alleged that
the Wardens subjected them to punitive strip searches unrelated to
any legitimate penological interest, in violation of the Fourth
Amendment and the substantive due process component of the Fifth
Amendment. Fourth, respondents alleged that the Wardens knowingly
allowed the guards to abuse respondents, in violation of the
substantive due process component of the Fifth Amendment.

															Respondents also brought a claim under 42
U. S. C. §1985(3), which forbids certain conspiracies to
violate equal protection rights. Respondents alleged that
petitioners conspired with one another to hold respondents in harsh
conditions because of their actual or apparent race, religion, or
national origin.

															C

															The District Court dismissed the claims
against the Executive Officials but allowed the claims against the
Wardens to go forward. The Court of Appeals affirmed in most
respects as to the Wardens, though it held that the prisoner abuse
claim against Sherman (the associate warden) should have been
dismissed. 789 F. 3d, at 264–265. As to the Executive
Officials, however, the Court of Appeals reversed, reinstating
respondents’ claims. Ibid. As noted above, Judge Raggi
dissented. She would have held that only the prisoner abuse claim
against Hasty should go forward. Id., at 295, n. 41, 302
(opinion concurring in part in judgment and dissenting in part).
The Court of Appeals declined to rehear the suit en banc, 808
F. 3d, at 197; and, again as noted above, Judge Raggi joined a
second dissent along with five other judges, id. , at 198.
This Court granted certiorari. 580 U. S. ___ (2016).

															II

															The first question to be discussed is whether
petitioners can be sued for damages under Bivens and the
ensuing cases in this Court defining the reach and the limits of
that precedent.

															A

															In 1871, Congress passed a statute that was
later codified at Rev. Stat. §1979, 42 U. S. C. §1983. It
entitles an injured person to money damages if a state official
violates his or her constitutional rights. Congress did not create
an analogous statute for federal officials. Indeed, in the 100
years leading up to Bivens , Congress did not pro-vide a
specific damages remedy for plaintiffs whose con-stitutional rights
were violated by agents of the Federal Government.

															In 1971, and against this background, this Court
decided Bivens . The Court held that, even absent
statutoryauthorization, it would enforce a damages remedy to
compensate persons injured by federal officers who vio-lated the
prohibition against unreasonable search and sei-zures. See 403
U. S., at 397. The Court acknowledged that the Fourth
Amendment does not provide for money damages “in so many words.” Id., at 396. The Court noted, however, that Congress had not
foreclosed a damages remedy in “explicit” terms and that no
“special factors” suggested that the Judiciary should “hesitat[e]”
in the face of congressional silence. Id., at 396–397. The
Court, accordingly, held that it could authorize a remedy under
general principles of federal jurisdiction. See id. , at 392
(citing Bell v. Hood , 327 U. S. 678, 684 (1946)
).

															In the decade that followed, the Court
recognized what has come to be called an implied cause of action in
two cases involving other constitutional violations. In Davis v. Passman , 442 U. S. 228 (1979) , an
administrative assistant sued a Congressman for firing her because
she was a woman. The Court held that the Fifth Amendment Due
Process Clause gave her a damages remedy for gender discrimination. Id., at 248–249. And in Carlson v. Green , 446
U. S. 14 (1980) , a prisoner’s estate sued federal jailers for
failing to treat the prisoner’s asthma. The Court held that the
Eighth Amendment Cruel and Unusual Punishments Clause gave him a
damages remedy for failure to provide adequate medical treatment.
See id. , at 19. These three cases— Bivens , Davis , and Carlson —represent the only instances in
which the Court has approved of an implied damages remedy under the
Constitution itself.

															B

															To understand Bivens and the two other
cases implying a damages remedy under the Constitution, it is
necessary to understand the prevailing law when they were decided.
In the mid-20th century, the Court followed a different approach to
recognizing implied causes of action than it follows now. During
this “ ancien regime ,” Alexander v. Sandoval ,
532 U. S. 275, 287 (2001) , the Court assumed it to be a
proper judicial function to “provide such remedies as are necessary
to make effective” a statute’s purpose, J. I. Case
Co. v. Borak , 377 U. S. 426, 433 (1964) . Thus, as
a routine matter with respect to statutes, the Court would imply
causes of action not explicit in the statutory text itself. See, e.g. , id., at 430–432; Allen v. State Bd.
of Elections , 393 U. S. 544, 557 (1969) ; Sullivan v. Little Hunting Park, Inc. , 396 U. S. 229, 239 (1969)
(“The existence of a statutory right implies the existence of all
necessary and appropriate remedies”).

															These statutory decisions were in place when Bivens recognized an implied cause of action to remedy a
constitutional violation. Against that background, the Bivens decision held that courts must “adjust their remedies
so as to grant the necessary relief” when “federally protected
rights have been invaded.” 403 U. S., at 392 (quoting Bell , supra , at 678); see also 403 U. S. , at 402 (Harlan, J., concurring) (discussing cases recognizing
implied causes of action under federal statutes). In light of this
interpretive framework, there was a possibility that “ the
Court would keep expanding Bivens until it became the
substantial equivalent of 42 U. S. C. §1983.” Kent, Are
Damages Different?: Bivens and National Security, 87
S. Cal. L. Rev. 1123, 1139–1140 (2014).

															C

															Later, the arguments for recognizing implied
causes of action for damages began to lose their force. In cases
decided after Bivens , and after the statutory implied
cause-of-action cases that Bivens itself relied upon, the
Court adopted a far more cautious course before finding implied
causes of action. In two principal cases under other statutes, it
declined to find an implied cause of action. See Piper v. Chris-Craft Industries, Inc. , 430 U. S. 1 –46 (1977); Cort v. Ash , 422 U. S. 66 –69 (1975). Later, in Cannon v. University of Chicago , 441 U. S. 677
(1979) , the Court did allow an implied cause of action; but it
cautioned that, where Congress “intends private litigants to have a
cause of action,” the “far better course” is for Congress to confer
that remedy in explicit terms. Id. , at 717.

															Following this expressed caution, the Court
clarified in a series of cases that, when deciding whether to
recognize an implied cause of action, the “determinative” question
is one of statutory intent. Sandoval , 532 U. S., at
286. If the statute itself does not “displa[y] an intent” to create
“a private remedy,” then “a cause of action does not exist and
courts may not create one, no matter how desirable that might be as
a policy matter, or how compatible with the statute.” Id .,
at 286–287; see also Transamerica Mortgage Advisors, Inc. v. Lewis , 444 U. S. 11 –16, 23–24 (1979); Karahalios v. Federal Employees , 489 U. S. 527
–537 (1989). The Court held that the judicial task was instead
“limited solely to determining whether Congress intended to create
the private right of action asserted.” Touche Ross & Co. v. Redington , 442 U. S. 560, 568 (1979) . If the
statute does not itself so provide, a private cause of action will
not be created through judicial mandate. See Transamerica , supra , at 24.

															The decision to recognize an implied cause of
action under a statute involves somewhat different considerations
than when the question is whether to recognize an implied cause of
action to enforce a provision of the Constitution itself. When
Congress enacts a statute, there are specific procedures and times
for considering its terms and the proper means for its enforcement.
It is logical, then, to assume that Congress will be explicit if it
intends to create a private cause of action. With respect to the
Constitution, however, there is no single, specific congressional
action to consider and interpret.

															Even so, it is a significant step under
separation-of-powers principles for a court to determine that it
has the authority, under the judicial power, to create and enforce
a cause of action for damages against federal officials in order to
remedy a constitutional violation. When determining whether
traditional equitable powers suffice to give necessary
constitutional protection—or whether, in addition, a damages remedy
is necessary—there are a number of economic and governmental
concerns to con-sider. Claims against federal officials often
create sub-stantial costs, in the form of defense and
indemnification. Congress, then, has a substantial responsibility
to determine whether, and the extent to which, monetary and other
liabilities should be imposed upon individual officers and
employees of the Federal Government. In addition, the time and
administrative costs attendant upon intrusions resulting from the
discovery and trial process are significant factors to be
considered. In an analogous context, Congress, it is fair to
assume, weighed those concerns in deciding not to substitute the
Government as defendant in suits seeking damages for constitutional
violations. See 28 U. S. C. §2679(b)(2)(A) (providing
that certain provisions of the Federal Tort Claims Act do not apply
to any claim against a federal employee “which is brought for a
violation of the Constitution”).

															For these and other reasons, the Court’s
expressed caution as to implied causes of actions under
congressional statutes led to similar caution with respect to
actions in the Bivens context, where the action is implied
to enforce the Constitution itself. Indeed, in light of the changes
to the Court’s general approach to recognizing implied damages
remedies, it is possible that the analysis in the Court’s three Bivens cases might have been different if they were decided
today. To be sure, no congressional enactment has disapproved of
these decisions. And it must be understood that this opinion is not
intended to cast doubt on the continued force, or even the
necessity, of Bivens in the search-and-seizure context in
which it arose. Bivens does vindicate the Constitution by
allowing some redress for injuries, and it provides instruction and
guidance to federal law enforcement officers going forward. The
settled law of Bivens in this common and recurrent sphere of
law enforcement, and the undoubted reliance upon it as a fixed
principle in the law, are powerful reasons to retain it in that
sphere.

															Given the notable change in the Court’s approach
to recognizing implied causes of action, however, the Court has
made clear that expanding the Bivens remedy is now a
“disfavored” judicial activity. Iqbal , 556 U. S., at
675. This is in accord with the Court’s observation that it has
“consistently refused to extend Bivens to any new context or
new category of defendants.” Correctional Services Corp. v. Malesko , 534 U. S. 61, 68 (2001) . Indeed, the Court
has refused to do so for the past 30 years.

															For example, the Court declined to create an
implied damages remedy in the following cases: a First Amendment
suit against a federal employer, Bush v. Lucas , 462
U. S. 367, 390 (1983) ; a race-discrimination suit against
military officers, Chappell v. Wallace , 462
U. S. 296 –305 (1983); a substantive due process suit against
military officers, United States v. Stanley , 483
U. S. 669 –672, 683–684 (1987); a procedural due process suit
against Social Security officials, Schweiker v. Chilicky , 487 U. S. 412, 414 (1988) ; a procedural due
process suit against a federal agency for wrongful termination, FDIC v. Meyer , 510 U. S. 471 –474 (1994); an
Eighth Amendment suit against a private prison operator, Malesko , supra , at 63; a due process suit against
officials from the Bureau of Land Management, Wilkie v. Robbins , 551 U. S. 537 –548, 562 (2007); and an Eighth
Amendment suit against prison guards at a private prison, Minneci v. Pollard , 565 U. S. 118, 120 (2012)
.

															When a party seeks to assert an implied cause of
action under the Constitution itself, just as when a party seeks to
assert an implied cause of action under a federal statute,
separation-of-powers principles are or should be central to the
analysis. The question is “who should decide” whether to provide
for a damages remedy, Congress or the courts? Bush, 462
U. S., at 380.

															The answer most often will be Congress. When an
issue “ ‘involves a host of considerations that must be
weighed and appraised,’ ” it should be committed to
“ ‘those who write the laws’ ” rather than “ ‘those
who interpret them.’ ” Ibid. (quoting United
States v. Gilman , 347 U. S. 507 –513 (1954)). In
most instances, the Court’s precedents now instruct, the
Legislature is in the better position to consider if “ ‘the
public interest would be served’ ” by imposing a “ ‘new
substantive legal liability.’ ” Schweiker , supra , at 426–427 (quoting Bush , supra , at
390). As a result, the Court has urged “caution” before “extending Bivens remedies into any new context.” Malesko , supra , at 74. The Court’s precedents now make clear that a Bivens remedy will not be available if there are
“ ‘special factors counselling hesitation in the absence of
affirmative action by Congress.’ ” Carlson , 446
U. S., at 18 (quoting Bivens , 403 U. S., at
396).

															This Court has not defined the phrase “special
factors counselling hesitation.” The necessary inference, though,
is that the inquiry must concentrate on whether the Judiciary is
well suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing a damages
action to proceed. Thus, to be a “special factor counselling
hesitation,” a factor must cause acourt to hesitate before
answering that question in the affirmative.

															It is not necessarily a judicial function to
establish whole categories of cases in which federal officers must
defend against personal liability claims in the complex sphere of
litigation, with all of its burdens on some and benefits to others.
It is true that, if equitable remedies prove insufficient, a
damages remedy might be necessary to redress past harm and deter
future violations. Yet the decision to recognize a damages remedy
requires an assessment of its impact on governmental operations
systemwide. Those matters include the burdens on Government
employees who are sued personally, as well as the projected costs
and consequences to the Government itself when the tort and
monetary liability mechanisms of the legal system are used to bring
about the proper formulation and implementation of public policies.
These and other considerations may make it less probable that
Congress would want the Judiciary to entertain a damages suit in a
given case.

															Sometimes there will be doubt because the case
arises in a context in which Congress has designed its regulatory
authority in a guarded way, making it less likely that Congress
would want the Judiciary to interfere. See Chappell , supra , at 302 (military); Stanley , supra , at
679 (same); Meyer , supra , at 486 (public purse); Wilkie , supra , at 561–562 (federal land). And
sometimes there will be doubt because some other feature of a
case—difficult to predict in advance—causes a court to pause before
acting without express congressional authorization. In sum, if
there are sound reasons to think Congress might doubt the efficacy
or necessity of a damages remedy as part of the system for
enforcing the law and correcting a wrong, the courts must refrain
from creating the remedy in order to respect the role of Congress
in determining the nature and extent of federal-court jurisdiction
under Article III.

															In a related way, if there is an alternative
remedial structure present in a certain case, that alone may limit
the power of the Judiciary to infer a new Bivens cause of
action. For if Congress has created “any alternative, existing
process for protecting the [injured party’s] interest” that itself
may “amoun[t] to a convincing reason for the Judicial Branch to
refrain from providing a new and freestanding remedy in damages.” Wilkie , supra, at 550; see also Bush , supra , at 385–388 (recognizing that civil-service
regulations provided alternative means for relief); Malesko ,
534 U. S., at 73–74 (recognizing that state tort law provided
alternative means for relief); Minneci , supra, at
127–130 (same).

															III

															It is appropriate now to turn first to the Bivens claims challenging the conditions of confinement
imposed on respondents pursuant to the formal policy adopted by the
Executive Officials in the wake of the September 11 attacks. The
Court will refer to these claims as the “detention policy claims.”
The detention policy claims allege that petitioners violated
respondents’ due process and equal protection rights by holding
them in restrictive conditions of confinement; the claims further
allege that the Wardens violated the Fourth and Fifth Amendments by
subjecting respondents to frequent strip searches. The term
“detention policy claims” does not include respondents’ claim
alleging that Warden Hasty allowed guards to abuse the detainees.
That claim will be considered separately, and further, below. At
this point, the question is whether, having considered the relevant
special factors in the whole context of the detention policy
claims, the Court should extend a Bivens -type remedy to
those claims.

															A

															Before allowing respondents’ detention policy
claims to proceed under Bivens , the Court of Appeals did not
perform any special factors analysis at all. 789 F. 3d, at
237. The reason, it said, was that the special factors analysis is
necessary only if a plaintiff asks for a Bivens remedy in a
new context. 789 F. 3d, at 234. And in the Court of Appeals’
view, the context here was not new. Id., at 235.

															To determine whether the Bivens context
was novel, the Court of Appeals employed a two-part test. First, it
asked whether the asserted constitutional right was at issue in a
previous Bivens case. 789 F. 3d, at 234. Second, it
asked whether the mechanism of injury was the same mechanism of
injury in a previous Bivens case. 789 F. 3d, at 234.
Under the Court of Appeals’ approach, if the answer to both
questions is “yes,” then the context is not new and no special
factors analysis is required. Ibid. That approach is inconsistent with the analysis
in Malesko . Before the Court decided that case, it had
approved a Bivens action under the Eighth Amendment against
federal prison officials for failure to provide medical treatment.
See Carlson , 446 U. S., at 16, n. 1, 18–19. In Malesko , the plaintiff sought relief against a private
prison operator in almost parallel circumstances. 534 U. S.,
at 64. In both cases, the right at issue was the same: the Eighth
Amendment right to be free from cruel and unusual punishment. And
in both cases, the mechanism of injury was the same: failure to
provide adequate medical treatment. Thus, if the approach followed
by the Court of Appeals is the correct one, this Court should have
held that the cases arose in the same context, obviating any need
for a special factors inquiry.

															That, however, was not the controlling analytic
framework in Malesko . Even though the right and the
mechanism of injury were the same as they were in Carlson ,
the Court held that the contexts were different. 534 U. S., at
70, and n. 4. The Court explained that special factors
counseled hesitation and that the Bivens remedy was
therefore unavailable. 534 U. S., at 74.

															For similar reasons, the holding of the Court of
Appeals in the instant suit is inconsistent with this Court’s
ana-lytic framework in Chappell . In Davis , decided
before the Court’s cautionary instructions with respect to Bivens suits, see supra, at 11–12, the Court had held
that an employment-discrimination claim against a Congressman could
proceed as a Bivens- type action. Davis , 442
U. S., at 230–231. In Chappell , however, the cautionary
rules were applicable; and, as a result, a similar discrimination
suit against military officers was not allowed to proceed. It is
the Chappell framework that now controls; and, under it, the
Court of Appeals erred by holding that this suit did not present a
new Bivens context.

															The proper test for determining whether a case
presents a new Bivens context is as follows. If the case is
different in a meaningful way from previous Bivens cases
decided by this Court, then the context is new. Without endeavoring
to create an exhaustive list of differences that are meaningful
enough to make a given context a new one, some examples might prove
instructive. A case might differ in a meaningful way because of the
rank of the officers involved; the constitutional right at issue;
the generality or specificity of the official action; the extent of
judicial guidance as to how an officer should respond to the
problem or emergency to be confronted; the statutory or other legal
mandate under which the officer was operating; the risk of
disruptive intrusion by the Judiciary into the functioning of other
branches; or the presence of potential special factors that
previous Bivens cases did not consider.

															In the present suit, respondents’ detention
policy claims challenge the confinement conditions imposed on
illegal aliens pursuant to a high-level executive policy created in
the wake of a major terrorist attack on American soil. Those claims
bear little resemblance to the three Bivens claims the Court
has approved in the past: a claim against FBI agents for
handcuffing a man in his own home without a warrant; a claim
against a Congressman for firing his female secretary; and a claim
against prison officials for failure to treat an inmate’s asthma.
See Bivens , 403 U. S. 388 ; Davis , 442
U. S. 228 ; Chappell , 462 U. S. 296 . The Court of
Appeals therefore should have held that this was a new Bivens context. Had it done so, it would have recognized
that a special factors analysis was required before allowing this
damages suit to proceed.

															B

															After considering the special factors
necessarily implicated by the detention policy claims, the Court
now holds that those factors show that whether a damages action
should be allowed is a decision for the Congress to make, not the
courts.

															With respect to the claims against the Executive
Officials, it must be noted that a Bivens action is not “a
proper vehicle for altering an entity’s policy.” Malesko , supra , at 74. Furthermore, a Bivens claim is brought
against the individual official for his or her own acts, not the
acts of others. “The purpose of Bivens is to deter the officer .” Meyer , 510 U. S., at 485. Bivens is not designed to hold officers responsible for acts
of their subordinates. See Iqbal , 556 U. S., at 676
(“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior ”).

															Even if the action is confined to the conduct of
a particular Executive Officer in a discrete instance, these claims
would call into question the formulation and implementation of a
general policy. This, in turn, would necessarily require inquiry
and discovery into the whole course of the discussions and
deliberations that led to the policies and governmental acts being
challenged. These consequences counsel against allowing a Bivens action against the Executive Officials, for the
burden and demand of litigation might well prevent them—or, to be
more precise, future officials like them—from devoting the time and
effort required for the proper discharge of their duties. See Cheney v. United States Dist. Court for D. C. , 542
U. S. 367, 382 (2004) (noting “the paramount necessity of
protecting the Executive Branch from vexatious litigation that
might distract it from the energetic performance of its
constitutional duties”).

															A closely related problem, as just noted, is
that the discovery and litigation process would either border upon
or directly implicate the discussion and deliberations that led to
the formation of the policy in question. See Federal Open Market
Comm. v. Merrill , 443 U. S. 340, 360 (1979) (noting
that disclosure of Executive Branch documents “could inhibit the
free flow of advice, including analysis, reports, and expression of
opinion within an agency”). Allowing a damages suit in this
context, or in a like context in other circumstances, would require
courts to interfere in an intrusive way with sensitive functions of
the Executive Branch. See Clinton v. Jones , 520
U. S. 681, 701 (1997) (recognizing that “ ‘[e]ven when a
branch does not arrogate power to itself . . . the
separation-of-powers doctrine requires that a branch not impair
another in the performance of its constitutional duties’ ”
(quoting Loving v. United States , 517 U. S. 748,
757 (1996) )). These considerations also counsel against allowing a
damages claim to proceed against the Executive Officials. See Cheney , supra , at 385 (noting that “special
considerations control” when a case implicates “the Executive
Branch’s interests in maintaining the autonomy of its office and
safeguarding the confidentiality of its communications”).

															In addition to this special factor, which
applies to the claims against the Executive Officials, there are
three other special factors that apply as well to the detention
policy claims against all of the petitioners. First, respondents’
detention policy claims challenge more than standard “law
enforcement operations.” United States v. Verdugo-Urquidez , 494 U. S. 259, 273 (1990) . They
challenge as well major elements of the Government’s whole response
to the September 11 attacks, thus of necessity requiring an inquiry
into sensitive issues of national security. Were this inquiry to be
allowed in a private suit for damages, the Bivens action
would assume dimensions far greater than those present in Bivens itself, or in either of its two follow-on cases, or
indeed in any putative Bivens case yet to come before the
Court.

															National-security policy is the prerogative of
the Congress and President. See U. S. Const., Art. I, §8;
Art. II, §1, §2. Judicial inquiry into the national-security
realm raises “concerns for the separation of powers in trenching on
matters committed to the other branches.” Christopher v. Harbury , 536 U. S. 403, 417 (2002) . These concerns are
even more pronounced when the judicial inquiry comes in the context
of a claim seeking money damages rather than a claim seeking
injunctive or other equitable relief. The risk of personal damages
liability is more likely to cause an official to second-guess
difficult but necessary decisions concerning national-security
policy.

															For these and other reasons, courts have shown
deference to what the Executive Branch “has determined
. . . is ‘essential to national security.’ ” Winter v. Natural Resources Defense Council, Inc. ,
555 U. S. 7, 24, 26 (2008) . Indeed, “courts traditionally
have been reluctant to intrude upon the authority of the Executive
in military and national security affairs” unless “Congress
specifically has provided otherwise.” Department of Navy v. Egan , 484 U. S. 518, 530 (1988) . Congress has not
provided otherwise here.

															There are limitations, of course, on the power
of the Executive under Article II of the Constitution and in the
powers authorized by congressional enactments, even with respect to
matters of national security. See, e.g., Hamdi v. Rumsfeld , 542 U. S. 507 –537 (2004) (plurality opinion)
(“Whatever power the United States Constitution envisions for the
Executive . . . in times of conflict, it most assuredly envisions a
role for all three branches when individual liberties are at
stake”); Boumediene v. Bush , 553 U. S. 723, 798
(2008) (“Liberty and security can be reconciled; and in our system
they are reconciled within the framework of the law”). And
national-security concerns must not become a talisman used to ward
off inconvenient claims—a “label” used to “cover a multitude of
sins.” Mitchell v. Forsyth , 472 U. S. 511, 523
(1985) . This “ ‘danger of abuse’ ” is even more
heightened given “ ‘the difficulty of defining’ ” the
“ ‘security interest’ ” in domestic cases. Ibid. (quoting United States v. United States Dist. Court for
Eastern Dist. of Mich. , 407 U. S. 297 –314 (1972)).

															Even so, the question is only whether
“congressionally uninvited intrusion” is “inappropriate” action for
the Judiciary to take. Stanley , 483 U. S., at 683. The
factors discussed above all suggest that Congress’ failure to
provide a damages remedy might be more than mere oversight, and
that congressional silence might be more than “inadvertent.” Schweiker , 487 U. S., at 423. This possibility counsels
hesitation “in the absence of affirmative action by Congress.” Bivens , 403 U. S., at 396.

															Furthermore, in any inquiry respecting the
likely or probable intent of Congress, the silence of Congress is
relevant; and here that silence is telling. In the almost 16 years
since September 11, the Federal Government’s responses to that
terrorist attack have been well documented. Congressional interest
has been “frequent and intense,” Schweiker , supra , at
425, and some of that interest has been directed to the conditions
of confinement at issue here. Indeed, at Congress’ behest, the
Department of Justice’s Office of the Inspector General compiled a
300-page report documenting the conditions in the MDC in great
detail. See 789 F. 3d, at 279 (opinion of Raggi, J.) (noting
that the USA PATRIOT Act 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”). Nevertheless, “[a]t no point did Congress choose to
extend to any person the kind of remedies that respondents seek in
this lawsuit.” Schweiker , 487 U. S., at 426.

															This silence is notable because it is likely
that high-level policies will attract the attention of Congress.
Thus, when Congress fails to provide a damages remedy in
circumstances like these, it is much more difficult to believe that
“congressional inaction” was “inadvertent.” Id. , at 423.

															It is of central importance, too, that this is
not a case like Bivens or Davis in which “it is
damages or nothing.” Bivens , supra , at 410 (Harlan,
J., concurring in judgment); Davis , 442 U. S., at 245.
Unlike the plaintiffs in those cases, respondents do not challenge
individual instances of discrimination or law enforcement
overreach, which due to their very nature are difficult to address
except by way of damages actions after the fact. Respondents
instead challenge large-scale policy decisions concerning the
conditions of confinement imposed on hundreds of prisoners. To
address those kinds of decisions, detainees may seek injunctive
relief. And in addition to that, we have left open the question
whether they might be able to challenge their confinement
conditions via a petition for a writ of habeas corpus. See Bell v. Wolfish , 441 U. S. 520, 526, n. 6 (1979)
(“[W]e leave to another day the question of the propriety of using
a writ of habeas corpus to obtain review of the conditions of
confinement”); Preiser v. Rodriguez , 411 U. S.
475, 499 (1973) (“When a prisoner is put under additional and
unconstitutional restraints during his lawful custody, it is
arguable that habeas corpus will lie to remove the restraints
making custody illegal”).

															Indeed, the habeas remedy, if necessity required
its use, would have provided a faster and more direct route to
relief than a suit for money damages. A successful habeas petition
would have required officials to place respondents in
less-restrictive conditions immediately; yet this dam-ages suit
remains unresolved some 15 years later. (As in Bell and Preiser , the Court need not determine the scope or
availability of the habeas corpus remedy, a question that is not
before the Court and has not been briefed or argued.) In sum,
respondents had available to them “ ‘other alternative forms
of judicial relief.’ ” Minneci , 565 U. S.,at 124.
And when alternative methods of relief are available, a Bivens remedy usually is not. See Bush , 462
U. S., at 386–388; Schweiker , supra , at 425–426; Malesko , 534 U. S., at 73–74; Minneci , supra , at 125–126.

															There is a persisting concern, of course, that
absent a Bivens remedy there will be insufficient deterrence
to prevent officers from violating the Constitution. In
circumstances like those presented here, however, the stakes on
both sides of the argument are far higher than in past cases the
Court has considered. If Bivens liability were to be
imposed, high officers who face personal liability for damages
might refrain from taking urgent and lawful action in a time of
crisis. And, as already noted, the costs and difficulties of later
litigation might intrude upon and interfere with the proper
exercise of their office.

															On the other side of the balance, the very fact
that some executive actions have the sweeping potential to affect
the liberty of so many is a reason to consider proper means to
impose restraint and to provide some redress from injury. There is
therefore a balance to be struck, in situations like this one,
between deterring constitutional violations and freeing high
officials to make the lawful decisions necessary to protect the
Nation in times of great peril. Cf. Stanley , supra ,
at 681 (noting that the special-factors analysis in that case
turned on “how much occasional, unintended impairment of military
discipline one is willing to tolerate”). The proper balance is one
for the Congress, not the Judiciary, to undertake. For all of these
reasons, the Court of Appeals erred by allowing respondents’
detention policy claims to proceed under Bivens .

															IV

															A

															One of respondents’ claims under Bivens requires a different analysis: the prisoner abuse claim against the
MDC’s warden, Dennis Hasty. The allegation is that Warden Hasty
violated the Fifth Amendment by allowing prison guards to abuse
respondents.

															The warden argues, as an initial matter, that
the complaint does not “ ‘state a claim to relief that is
plausible on its face.’ ” Iqbal , 556 U. S., at 678
(quoting Bell Atlantic Corp. v. Twombly , 550
U. S. 544, 570 (2007) ). Applying its precedents, the Court of
Appeals held that the substantive standard for the sufficiency of
the claim is whether the warden showed “deliberate indifference” to
prisoner abuse. 789 F. 3d, at 249–250. The parties appear to
agree on this standard, and, for purposes of this case, the Court
assumes it to be correct.

															The complaint alleges that guards routinely
abused respondents; that the warden encouraged the abuse by
referring to respondents as “terrorists”; that he prevented
respondents from using normal grievance procedures; that he stayed
away from the Unit to avoid seeing the abuse; that he was made
aware of the abuse via “inmate complaints, staff complaints, hunger
strikes, and suicide attempts”; that he ignored other “direct
evidence of [the] abuse, including logs and other official
[records]”; that he took no action “to rectify or address the
situation”; and that the abuse resulted in the injuries described
above, see supra, at 4. These allegations—assumed here to be
true, subject to proof at a later stage—plausibly show the warden’s
deliberate indifference to the abuse. Consistent with the opinion
of every judge in this case to have considered the question,
including the dissenters in the Court of Appeals, the Court
concludes that the prisoner abuse allegations against Warden Hasty
state a plausible ground to find a constitutional violation if a Bivens remedy is to be implied.

															Warden Hasty argues, however, that Bivens ought not to be extended to this instance of alleged prisoner
abuse. As noted above, the first question a court must ask in a
case like this one is whether the claim arises in a new Bivens context, i.e. , whether “the case is different
in a meaningful way from previous Bivens cases decided by
this Court.” Supra, at 16.

															It is true that this case has significant
parallels to one of the Court’s previous Bivens cases, Carlson v. Green, 446 U. S. 14 . There, the
Court did allow a Bivens claim for prisoner
mistreatment—specifically, for failure to provide medical care. And
the allegations of injury here are just as compelling as those at
issue in Carlson . This is especially true given that the
complaint alleges serious violations of Bureau of Prisons policy.
See 28 CFR §552.20 (2016) (providing that prison staff may use
force “only as a last alternative after all other reasonable
efforts to resolve a situation have failed” and that staff may “use
only that amount of force necessary to [ensure prison safety and
security]”); §552.22(j) (“All incidents involving the use of force
. . . must be carefully documented”); §542.11 (requiring
the warden to investigate certain complaints of inmate abuse).

															Yet even a modest extension is still an
extension. And this case does seek to extend Carlson to a
new context. As noted above, a case can present a new context for Bivens purposes if it implicates a different constitutional
right; if judicial precedents provide a less meaningful guide for
official conduct; or if there are potential special factors that
were not considered in previous Bivens cases. See supra, at 13.

															The constitutional right is different here,
since Carlson was predicated on the Eighth Amendment and
this claim is predicated on the Fifth. See 446 U. S., at 16.
And the judicial guidance available to this warden, with respect to
his supervisory duties, was less developed. The Court has long made
clear the standard for claims alleging failure to provide medical
treatment to a prisoner—“deliberate indifference to serious medical
needs.” Estelle v. Gamble , 429 U. S. 97, 104
(1976) . The standard for a claim alleging that a warden allowed
guards to abuse pre-trial detainees is less clear under the Court’s
precedents.

															This case also has certain features that were
not considered in the Court’s previous Bivens cases and that
might discourage a court from authorizing a Bivens remedy.
As noted above, the existence of alternative remedies usually
precludes a court from authorizing a Bivens action. Supra, at 14. And there might have been alternative remedies
available here, for example, a writ of habeas corpus, Wolfish , 441 U. S., at 526, n. 6; an injunction
requiring the warden to bring his prison into compliance with the
regulations discussed above; or some other form of equitable
relief.

															Furthermore, legislative action suggesting that
Congress does not want a damages remedy is itself a factor
counseling hesitation. See supra, at 14. Some 15 years after Carlson was decided, Congress passed the Prison Litigation
Reform Act of 1995, which made comprehensive changes to the way
prisoner abuse claims must be brought in federal court. See 42
U. S. C. §1997e. So it seems clear that Congress had
specific occasion to consider the matter of prisoner abuse and to
consider the proper way to rem-edy those wrongs. This Court has
said in dicta that the Act’s exhaustion provisions would apply to Bivens suits. See Porter v. Nussle , 534
U. S. 516, 524 (2002) . But the Act itself does not provide
for a standalone damages remedy against federal jailers. It could
be argued that this suggests Congress chose not to extend the Carlson dam-ages remedy to cases involving other types of
prisoner mistreatment.

															The differences between this claim and the one
in Carlson are perhaps small, at least in practical terms.
Given this Court’s expressed caution about extending the Bivens remedy, however, the new-context inquiry is easily
satisfied. Some differences, of course, will be so trivial that
they will not suffice to create a new Bivens context. But
here the differences identified above are at the very least
meaningful ones. Thus, before allowing this claim to proceed under Bivens , the Court of Appeals should have performed a special
factors analysis. It should have analyzed whether there were
alternative remedies available or other “sound reasons to think
Congress might doubt the efficacy or necessity of a damages remedy”
in a suit like this one. Supra, at 15.

															B

															Although the Court could perform that analysis
in the first instance, the briefs have concentrated almost all of
their efforts elsewhere. Given the absence of a comprehensive
presentation by the parties, and the fact that the Court of Appeals
did not conduct the analysis, the Court declines to perform the
special factors analysis itself. The better course is to vacate the
judgment below, allowing the Court of Appeals or the District Court
to do so on remand.

															V

															One issue remains to be addressed: the claim
that petitioners are subject to liability for civil conspiracy
under 42 U. S. C. §1985(3). Unlike the prisoner abuse
claim just discussed, this claim implicates the activities of all
the petitioners—the Executive Officials as well as the Wardens—in
creating the conditions of confinement at issue here.

															The civil-conspiracy prohibition contained in
§1985(3) was enacted as a significant part of the civil rights
legislation passed in the aftermath of the Civil War. See Carpenters v. Scott , 463 U. S. 825 –837 (1983)
(detailing the legislative history of §1985(3)); Griffin v. Breckenridge , 403 U. S. 88 –101 (1971) (same); Great
American Fed. Sav. & Loan Assn. v. Novotny , 442
U. S. 366, 379 (1979) (Powell, J., concurring) (describing
§1985(3) as a “Civil War Era remedial statute”). The statute
imposes liability on two or more persons who “conspire
. . . for the purpose of depriving . . . any
person or class of persons of the equal protection of the laws.”
§1985(3). In the instant suit, respondents allege that petitioners
violated the statute by “agreeing to implement a policy” under
which respondents would be detained in harsh conditions “because of
their race, religion, ethnicity, and national origin.” Assuming
these allegations to be true and well pleaded, the question is
whether petitioners are entitled to qualified immunity.

															A

															The qualified immunity rule seeks a proper
balance between two competing interests. On one hand, damages suits
“may offer the only realistic avenue for vindication of
constitutional guarantees.” Harlow v. Fitzgerald , 457
U. S. 800, 814 (1982) . “On the other hand, permitting damages
suits against government officials can entail substantial social
costs, including the risk that fear of personal monetary liability
and harassing litigation will unduly inhibit officials in the
discharge of their duties.” Anderson v. Creighton ,
483 U. S. 635, 638 (1987) . As one means to accommodate these
two objectives, the Court has held that Government officials are
entitled to qualified immunity with respect to “discretionary
functions” performed in their official capacities. Ibid. The
doctrine of qualified immunity gives officials “breathing room to
make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd , 563 U. S. 731, 743 (2011)
.

															The Court’s cases provide additional instruction
to define and implement that immunity. Whether qualified immunity
can be invoked turns on the “objective legal reasonableness” of the
official’s acts. Harlow , supra , at 819. And
reasonableness of official action, in turn, must be “assessed in
light of the legal rules that were clearly established at the time
[the action] was taken.” Anderson , supra , at 639
(internal quotation marks omitted); see also Mitchell , 472
U. S., at 528. This requirement—that an official loses
qualified immunity only for violating clearly established
law—protects officials accused of violating “extremely abstract
rights.” Anderson , supra , at 639.

															The Fourth Amendment provides an example of how
qualified immunity functions with respect to abstract rights. By
its plain terms, the Amendment forbids unreasonable searches and
seizures, yet it may be difficult for an officer to know whether a
search or seizure will be deemed reasonable given the precise
situation encountered. See Saucier v. Katz , 533
U. S. 194, 205 (2001) (“It is sometimes difficult for an
officer to determine how the relevant legal doctrine, here
excessive force, will apply to the factual situation the officer
confronts”). For this reason, “[t]he dispositive question is
‘whether the violative nature of particular conduct is
clearly established.’ ” Mullenix v. Luna , 577
U. S. ___, ___ (2015) ( per curiam ) (slip op., at 5)
(quoting Ashcroft , supra , at 742).

															It is not necessary, of course, that “the very
action in question has previously been held unlawful.” Anderson , supra , at 640. That is, an officer might
lose qualified immunity even if there is no reported case “directly
on point.” Ashcroft , supra , at 741. But “in the light
of pre-existing law,” the unlawfulness of the officer’s conduct
“must be apparent.” Anderson , supra , at 640. To
subject officers to any broader liability would be to “disrupt the
balance that our cases strike between the interests in vindication
of citizens’ constitutional rights and in public officials’
effective performance of their duties.” Davis v. Scherer , 468 U. S. 183, 195 (1984) . For then, both as
a practical and legal matter, it would be difficult for officials
“reasonably [to] anticipate when their conduct may give rise to
liability for damages.” Ibid. In light of these concerns, the Court has held
that qualified immunity protects “all but the plainly incompetent
or those who knowingly violate the law.” Malley v. Briggs , 475 U. S. 335, 341 (1986) . To determine
whether a given officer falls into either of those two categories,
a court must ask whether it would have been clear to a reasonable
officer that the alleged conduct “was unlawful in the situation he
confronted.” Saucier , supra , at 202. If so, then the
defendant officer must have been either incompetent or else a
knowing violator of the law, and thus not entitled to qualified
immunity. If not, however— i.e., if a reasonable officer
might not have known for certain that the conduct was unlawful—then
the officer is immune from liability.

															B

															Under these principles, it must be concluded
that reasonable officials in petitioners’ positions would not have
known, and could not have predicted, that §1985(3) prohibited their
joint consultations and the resulting policies that caused the
injuries alleged.

															At least two aspects of the complaint indicate
that petitioners’ potential liability for this statutory offense
would not have been known or anticipated by reasonable officials in
their position. First, the conspiracy recited in the complaint is
alleged to have been between or among officers in the same branch
of the Government (the Executive Branch) and in the same Department
(the Department of Justice). Second, the discussions were the
preface to, and the outline of, a general and far-reaching
policy.

															As to the fact that these officers were in the
same Department, an analogous principle discussed in the context of
antitrust law is instructive. The Court’s precedent indicates that
there is no unlawful conspiracy when officers within a single
corporate entity consult among themselves and then adopt a policy
for the entity. See Copperweld Corp v . Independence Tube
Corp. , 467 U. S. 752 ,769–771 (1984). Under this
principle—sometimes called the intracorporate-conspiracy
doctrine—an agreement between or among agents of the same legal
entity, when the agents act in their official capacities, is not an
unlawful conspiracy. Ibid. The rule is derived from the
nature of the conspiracy prohibition. Conspiracy requires an
agreement—and in particular an agreement to do an unlawful
act—between or among two or more separate persons. When two agents
of the same legal entity make an agreement in the course of their
official duties, how-ever, as a practical and legal matter their
acts are attributed to their principal. And it then follows that
there has not been an agreement between two or more separate
people. See id. , at 771 (analogizing to “a multiple team of
horses drawing a vehicle under the control of a single
driver”).

															To be sure, this Court has not given its
approval to this doctrine in the specific context of §1985(3). See Great American, 442 U. S., at 372, n. 11. There is a
division in the courts of appeals, moreover, respecting the
validity or correctness of the intracorporate-conspiracy doctrine
with reference to §1985 conspiracies. See Hull v. Shuck , 501 U. S. 1261 –1262 (1991) (White, J.,
dissenting from denial of certiorari) (discussing the Circuit
split); Bowie v. Maddox , 642 F. 3d 1122, 1130–1131
(CADC 2011) (detailing a longstanding split about whether the
intracorporate-conspiracy doctrine applies to civil rights
conspiracies). Nothing in this opinion should be interpreted as
either approving or disapproving the intracorporate-conspiracy
doctrine’s application in the context of an alleged §1985(3)
violation. The Court might determine, in some later case, that
different considerations apply to a conspiracy respecting equal
protection guarantees, as distinct from a conspiracy in the
antitrust context. Yet the fact that the courts are divided as to
whether or not a §1985(3) conspiracy can arise from official
discussions between or among agents of the same entity demonstrates
that the law on the point is not well established. When the courts
are divided on an issue so central to the cause of action alleged,
a reasonable official lacks the notice required before imposing
liability. See Wilson v. Layne , 526 U. S. 603,
618 (1999) (noting that it would be “unfair” to subject officers to
damages liability when even “judges . . . disagree”); Reichle v. Howards , 566 U. S. 658 –670 (2012)
(same).

															In addition to the concern that agents of the
same legal entity are not distinct enough to conspire with one
another, there are other sound reasons to conclude that
conver-sations and agreements between and among federal officials
in the same Department should not be the subject of a private cause
of action for damages under §1985(3). To state a claim under
§1985(3), a plaintiff must first show that the defendants
conspired—that is, reached an agreement—with one another. See Carpenters , 463 U. S., at 828 (stating that the
elements of a §1985(3) claim include “a conspiracy”). Thus, a
§1985(3) claim against federal officials by necessity implicates
the substance of their official discussions.

															As indicated above with respect to other claims
in this suit, open discussion among federal officers is to be
encouraged, so that they can reach consensus on the policies a
department of the Federal Government should pursue. See supra, at 17–18. Close and frequent consultations to
facilitate the adoption and implementation of policies are
essential to the orderly conduct of governmental affairs. Were
those discussions, and the resulting policies, to be the basis for
private suits seeking damages against the officials as individuals,
the result would be to chill the interchange and discourse that is
necessary for the adoption and implementation of governmental
policies. See Cheney , 542 U. S., at 383 (discussing the
need for confidential communications among Executive Branch
officials); Merrill , 443 U. S., at 360 (same).

															These considerations suggest that officials
employed by the same governmental department do not conspire when
they speak to one another and work together in their official
capacities. Whether that contention should prevail need not be
decided here. It suffices to say that the question is sufficiently
open so that the officials in this suit could not be certain that
§1985(3) was applicable to their discussions and actions. Thus, the
law respondents seek to invoke cannot be clearly established. It
follows that reasonable officers in petitioners’ positions would
not have known with any certainty that the alleged agreements were
forbidden by law. See Saucier , 533 U. S., at 202.
Petitioners are entitled to qualified immunity with respect to the
claims under 42 U. S. C. §1985(3).

															*  *  *

															If the facts alleged in the complaint are
true, then what happened to respondents in the days following
September 11 was tragic. Nothing in this opinion should be read to
condone the treatment to which they contend they were subjected.
The question before the Court, however, is not whether petitioners’
alleged conduct was proper, nor whether it gave decent respect to
respondents’ dignity and well-being, nor whether it was in keeping
with the idea of the rule of law that must inspire us even in times
of crisis.

															Instead, the question with respect to the Bivens claims is whether to allow an action for money
damages in the absence of congressional authorization. For the
reasons given above, the Court answers that question in the
negative as to the detention policy claims. As to the prisoner
abuse claim, because the briefs have not concentrated on that
issue, the Court remands to allow the Court of Appeals to consider
the claim in light of the Bivens analysis set forth
above.

															The question with respect to the §1985(3) claim
is whether a reasonable officer in petitioners’ position would have
known the alleged conduct was an unlawful conspiracy. For the
reasons given above, the Court answers that question, too, in the
negative.

															The judgment of the Court of Appeals is reversed
as to all of the claims except the prisoner abuse claim against
Warden Hasty. The judgment of the Court of Appeals with respect to
that claim is vacated, and that case is remanded for further
proceedings.

															It is so ordered.

															Justice Sotomayor, Justice Kagan, and Justice
Gorsuch took no part in the consideration or decision of these
cases. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 15–1358, 15–1359 and 15–1363

															_________________

															JAMES W. ZIGLAR, PETITIONER

															15–1358 v. AHMER IQBAL ABBASI, et al.

															JOHN D. ASHCROFT, FORMER
ATTORNEYGENERAL, et al., PETITIONERS

															15–1359 v. AHMER IQBAL ABBASI, et al.

															DENNIS HASTY, et al.,
PETITIONERS

															15–1363 v. AHMER IQBAL ABBASI, et al.

															on writs of certiorari to the united states
court of appeals for the second circuit

															[June 19, 2017]

															Justice Thomas, concurring in part and
concurring in the judgment.

															I join the Court’s opinion except for Part IV–B.
I write separately to express my view on the Court’s decision to
remand some of respondents’ claims under Bivens v. Six
Unknown Fed. Narcotics Agents , 403 U. S. 388 (1971) , and
my concerns about our qualified immunity precedents.

															I

															With respect to respondents’ Bivens claims, I join the opinion of the Court to the extent it reverses
the Second Circuit’s ruling. The Court correctly applies our
precedents to hold that Bivens does not supply a cause of
action against petitioners for most of the alleged Fourth and Fifth
Amendment violations. It also correctly recognizes that
respondents’ claims against petitioner Dennis Hasty seek to extend Bivens to a new context. See ante, at 24.

															I concur in the judgment of the Court vacating
the Court of Appeals’ judgment with regard to claims against Hasty. Ante, at 29. I have previously noted that
“ ‘ Bivens is a relic of the heady days in which this
Court assumed common-law powers to create causes of action.’ ” Wilkie v. Robbins , 551 U. S. 537, 568 (2007)
(concurring opinion) (quoting Correctional Services Corp. v. Malesko , 534 U. S. 61, 75 (2001) (Scalia, J.,
concurring)). I have thus declined to “extend Bivens even
[where] its reasoning logically applied,” thereby limiting “Bivens and its progeny . . . to the precise
circumstances that they involved.” Ibid. (internal quotation
marks omitted). This would, in most cases, mean a reversal of the
judgment of the Court of Appeals is in order. However, in order for
there to be a controlling judgment in this suit, I concur in the
judgment vacating and remanding the claims against petitioner Hasty
as that disposition is closest to my preferred approach.

															II

															As for respondents’ claims under 42
U. S. C. §1985(3),I join Part V of the Court’s opinion,
which holds thatrespondents are entitled to qualified immunity.
TheCourt correctly applies our precedents, which no party has asked
us to reconsider. I write separately, however, to note my growing
concern with our qualified immunity jurisprudence.

															The Civil Rights Act of 1871, of which §1985(3)
and the more frequently litigated §1983 were originally a part,
established causes of action for plaintiffs to seek money damages
from Government officers who violated federal law. See §§1, 2,
17Stat. 13. Although the Act made no mention of defenses or
immunities, “we have read it in harmony with general principles of
tort immunities and defenses rather than in derogation of them.” Malley v. Briggs , 475 U. S. 335, 339 (1986)
(internal quotation marks omitted). We have done so because
“[c]ertain immunities were so well established in 1871
. . . that ‘we presume that Congress would have
specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons , 509 U. S. 259, 268
(1993) ; accord, Briscoe v. LaHue , 460 U. S.
325, 330 (1983) . Immunity is thus available under the statute if
it was “historically accorded the relevant official” in an
analogous situation “at common law,” Imbler v. Pachtman , 424 U. S. 409, 421 (1976) , unless the
statute provides some reason to think that Congress did not
preserve the defense, see Tower v. Glover , 467
U. S. 914, 920 (1984) .

															In some contexts, we have conducted the
common-law inquiry that the statute requires. See Wyatt v. Cole , 504 U. S. 158, 170 (1992) (Kennedy, J.,
concurring). For example, we have concluded that legislators and
judges are absolutely immune from liability under §1983 for their
official acts because that immunity was well established at common
law in 1871. See Tenney v. Brandhove , 341 U. S.
367 –376 (1951) (legislators); Pierson v. Ray , 386
U. S. 547 –555 (1967) (judges). We have similarly looked to
the common law in holding that a prosecutor is immune from suits
relating to the “judicial phase of the criminal process,” Imbler , supra , at 430; Burns v. Reed ,
500 U. S. 478 –492 (1991); but see Kalina v. Fletcher , 522 U. S. 118 –134 (1997) (Scalia, J., joined
by Thomas, J., concurring) (arguing that the Court in Imbler misunderstood 1871 common-law rules), although not from suits
relating to the prosecutor’s advice to police officers, Burns , supra , at 493.

															In developing immunity doctrine for other
executive officers, we also started off by applying common-law
rules. In Pierson , we held that police officers are not
absolutely immune from a §1983 claim arising from an arrest made
pursuant to an unconstitutional statute because the common law
never granted arresting officers that sort of immunity. 386
U. S., at 555. Rather, we concluded that police officers could
assert “the defense of good faith and probable cause” against the
claim for an unconstitutional arrest because that defense was
available against the analogous torts of “false arrest and
imprisonment” at common law. Id. , at 557.

															In further elaborating the doctrine of qualified
immun-ity for executive officials, however, we have diverged from
the historical inquiry mandated by the statute. See Wyatt , supra , at 170 (Kennedy, J., concurring); accord, Crawford-El v. Britton , 523 U. S. 574, 611
(1998) (Scalia, J.,joined by Thomas, J., dissenting). In the
decisions following Pierson , we have “completely
reformulated qualified immunity along principles not at all
embodied in the common law.” Anderson v. Creighton ,
483 U. S. 635, 645 (1987) (discussing Harlow v. Fitzgerald , 457 U. S. 800 (1982) ). Instead of asking
whether the common law in 1871 would have accorded immunity to an
officer for a tort analogous to the plaintiff’s claim under §1983,
we instead grant immunity to any officer whose conduct “does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Mullenix v. Luna , 577 U. S. ___, ___–___ (2015) ( per
cu-riam ) (slip op., at 4–5) (internal quotation marks omitted); Taylor v. Barkes , 575 U. S. ___, ___ (2015)
(slip op., at 4) (a Government official is liable under the 1871
Act only if “ ‘existing precedent . . . placed the
statutory or constitutional question beyond debate’ ” (quoting Ashcroft v. al-Kidd , 563 U. S. 731, 741 (2011)
)). We apply this “clearly established” standard “across the board”
and without regard to “the precise nature of the various officials’
duties or the precise character of the particular rights alleged to
have been violated.” Anderson , supra , at 641–643
(internal quotation marks omitted).[ 1 ] We have not attempted to locate that standard in the
common law as it existed in 1871, however, and some evidence
supports the conclusion that common-law immunity as it existed in
1871 looked quite different from our current doctrine. See
generally Baude, Is Qualified Immunity Unlawful? 106 Cal.
L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at
https://papers.ssrn.com/abstract=2896508 (as last visited June 15,
2017).

															Because our analysis is no longer grounded in
thecommon-law backdrop against which Congress enacted the1871 Act,
we are no longer engaged in “interpret[ing] the intent of Congress
in enacting” the Act. Malley , supra , at 342; see Burns , supra , at 493. Our qualified immunity
precedents instead represent precisely the sort of “freewheeling
policy choice[s]” that we have previously disclaimed the power to
make. Rehberg v. Paulk , 566 U. S. 356, 363
(2012) (internal quotation marks omitted); see also Tower , supra, at 922–923 (“We do not have a license to establish
immunities from” suits brought under the Act “in the interests of
what we judge to be sound public pol-icy”). We have acknowledged,
in fact, that the “clearly established” standard is designed to
“protec[t] the balance between vindication of constitutional rights
and government officials’ effective performance of their duties.” Reichle v. Howards , 566 U. S. 658, 664 (2012)
(internal quotation marks omitted); Harlow , supra , at
807 (explaining that “the recognition of a qualified immunity
defense . . . reflected an attempt to balance competing
values”). The Constitution assigns this kind of balancing to
Congress, not the Courts.

															In today’s decision, we continue down the path
our precedents have marked. We ask “whether it would have been
clear to a reasonable officer that the alleged conduct was unlawful
in the situation he confronted,” ante, at 29 (internal
quotation marks omitted), rather than whether officers in
petitioners’ positions would have been accorded immunity at common
law in 1871 from claims analogous to respondents’. Even if we
ultimately reach a conclusion consistent with the common-law rules
prevailing in 1871, it is mere fortuity. Until we shift the focus
of our inquiry to whether immunity existed at common law, we will
continue to substitute our own policy preferences for the mandates
of Congress. In an appropriate case, we should reconsider our
qualified immunity jurisprudence. Notes 1 Although we first
formulated the “clearly established” standard in Bivens cases like Harlow and Anderson , we have imported that
standard directly into our 1871 Act cases. See, e.g.,
Pearson v. Callahan , 555 U. S. 223 –244 (2009)
(applying the clearly established standard to a §1983
claim). SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 15–1358, 15–1359 and 15–1363

															_________________

															JAMES W. ZIGLAR, PETITIONER

															15–1358 v. AHMER IQBAL ABBASI, et al.

															JOHN D. ASHCROFT, FORMER
ATTORNEYGENERAL, et al., PETITIONERS

															15–1359 v. AHMER IQBAL ABBASI, et al.

															DENNIS HASTY, et al.,
PETITIONERS

															15–1363 v. AHMER IQBAL ABBASI, et al.

															on writs of certiorari to the united states
court of appeals for the second circuit

															[June 19, 2017]

															Justice Breyer, with whom Justice Ginsburg
joins, dissenting.

															In Bivens v. Six Unknown Fed.
Narcotics Agents , 403 U. S. 388 (1971 ) , this Court
held that the Fourth Amendment provides a damages remedy for those
whom federal officials have injured as a result of an
unconstitutional search or seizure. In Davis v. Passman , 442 U. S. 228 (1979) , the Court held
that the Fifth Amendment provides a damages remedy to an individual
dismissed by her employer (a Member of Congress) on the basis of
her sex in violation of the equal protection component of that
Amendment’s Due Process Clause. And in Carlson v. Green , 446 U. S. 14 (1980) , the Court held that the
Eighth Amendment provides a damages remedy to a prisoner who died
as a result of prison official’s deliberate indifference to his
medical needs, in violation of the Amendment’s prohibition against
cruel and unusual punishment.

															It is by now well established that federal law
provides damages actions at least in similar contexts, where claims
of constitutional violation arise. Congress has ratified Bivens actions, plaintiffs frequently bring them, courts
accept them, and scholars defend their importance. See J. Pfander,
Constitutional Torts and the War on Terror (2017) (canvassing the
history of Bivens and cataloguing cases). Moreover, the
courts, in order to avoid deterring federal officials from properly
performing their work, have developed safeguards for defendants,
including the requirement that plaintiffs plead “plausible” claims, Ashcroft v. Iqbal , 556 U. S. 662, 679 (2009) ,
as well as the defense of “qualified immunity,” which frees federal
officials from both threat of liability and involvement in the
lawsuit, unless the plaintiffs establish that officials have
violated “ ‘clearly established . . . constitutional
rights,’ ” id., at 672 (quoting Harlow v. Fitzgerald , 457 U. S. 800, 818 (1982) ). “[This] Court
has been reluctant to extend Bivens liability ‘to any new
context or new category of defendants.’ ” Iqbal , supra , at 675 (quoting Correctional Services Corp. v. Malesko , 534 U. S. 61, 68 (2001) ). But the Court has
made clear that it would not narrow Bivens’ existing scope.
See FDIC v. Meyer , 510 U. S. 471, 485 (1994)
(guarding against “the evisceration of the Bivens remedy” so
that its “deterrent effects . . . would [not] be
lost”).

															The plaintiffs before us today seek damages for
unconstitutional conditions of confinement. They alleged that
federal officials slammed them against walls, shackled them,
exposed them to nonstop lighting, lack of hygiene, and the like,
all based upon invidious discrimination and without penological
justification. See ante , at 4–5. In my view, these claims
are well-pleaded, state violations of clearly established law, and
fall within the scope of longstanding Bivens law. For those
reasons, I would affirm the judgment of the Court of Appeals. I
shall discuss at some length what I believe is the most important
point of disagreement. The Court, in my view, is wrong to hold that
permitting a constitutional tort action here would “extend” Bivens , applying it in a new context. To the contrary, I
fear that the Court’s holding would significantly shrink the
existing Bivens contexts, diminishing the compensatory
remedy constitutional tort law now offers to harmed
individuals.

															I shall explain why I believe this suit falls
well within the scope of traditional constitutional tort law and
why I cannot agree with the Court’s arguments to the contrary. I
recognize, and write separately about, the strongest of the Court’s
arguments, namely, the fact that plaintiffs’ claims concern
detention that took place soon after a serious attack on the United
States and some of them concern actions of high-level Government
officials. While these facts may affect the substantive
constitutional questions ( e.g. , were any of the conditions
“legitimate”?) or the scope of the qualified-immunity defense, they
do not extinguish the Bivens action itself. If I may
paraphrase Justice Harlan, concurring in Bivens : In wartime
as well as in peacetime, “it is important, in a civilized society,
that the judicial branch of the Nation’s government stand ready to
afford a remedy” “for the most flagrant and pat-ently unjustified,”
unconstitutional “abuses of official power.” 403 U. S., at
410–411 (opinion concurring in judgment); cf. Boumediene v. Bush , 553 U. S. 723, 798 (2008) .

															I

															The majority opinion well summarizes the
particular claims that the plaintiffs make in this suit. All
concern the conditions of their confinement, which began soon after
the September 11, 2001, attacks and “lasted for days and weeks,
then stretching into months.” Ante, at 1. At some point, the
plaintiffs allege, all the defendants knew that they had nothing to
do with the September 11 attacks but continued to detain them
anyway in harsh conditions. Official Government policy, both before
and after the defendants became aware of the plaintiffs’ innocence,
led to the plaintiffs being held in “tiny cells for over 23 hours a
day” with lights continuously left on, “shackled” when moved, often
“strip searched,” and “denied access to most forms of communication
with the outside world.” Ante, at 4 (internal quotation
marks omitted). The defendants detained the plaintiffs in these
conditions on the basis of their race or religion and without
justification.

															Moreover, the prison wardens were aware of, but
deliberately indifferent to, certain unofficial activities of
prison guards involving a pattern of “physical and verbal abuse,”
such as “slam[ming] detainees into walls; twist[ing] their arms,
wrists, and fingers; [breaking] their bones;” and subjecting them
to verbal taunts. Ibid. (internal quotation marks
omitted).

															The plaintiffs’ complaint alleges that all the
defendants—high-level Department of Justice officials and prison
wardens alike—were directly responsible for the official
confinement policy, which, in some or all of the aspects mentioned,
violated the due process and equal protection components of the
Fifth Amendment. The complaint adds that, insofar as the prison
wardens were deliberately indifferent to the unofficial conduct of
the guards, they violated the Fourth and the Fifth Amendments.

															I would hold that the complaint properly alleges
constitutional torts, i.e., Bivens actions for
damages.

															A

															The Court’s holdings in Bivens , Carlson , and Davis rest upon four basic legal
considerations. First, the Bivens Court referred to
longstanding Supreme Court precedent stating or suggesting that the
Constitution provides fed-eral courts with considerable legal
authority to use traditional remedies to right constitutional
wrongs. That precedent begins with Marbury v. Madison , 1 Cranch 137 (1803) , which effectively
placed upon those who would deny the existence of an effective
legal remedy the burden of showing why their case was special.
Chief Justice John Marshall wrote for the Court that

															“[t]he very essence of civil liberty
[lies] in the right of every individual to claim the protection of
the laws, whenever he receives an injury.” Id. , at 163.

															The Chief Justice referred to Blackstone’s
Commentaries stating that there

															“ ‘is a general and indisputable
rule, that where there is a legal right, there is also a legal
remedy . . . [and that] it is a settled and invariable
principle in the laws of England, that every right, when withheld,
must have a remedy, and every injury its proper redress.’ ” 1
Cranch, at 163.

															The Chief Justice then wrote:

															“The government of the United States has
been emphatically termed a government of laws, and not of men. It
will [not] deserve this high appellation, if the laws furnish no
remedy for the violation of a vested legal right.” Ibid. He concluded for the Court that there must be
something “peculiar” ( i.e., special) about a case that
warrants “exclu[ding] the injured party from legal redress
. . . [and placing it within] that class of cases which
come under the description of damnum absque injuria— a loss
without an injury.” Id., at 163–164; but cf. id., at
164 (placing “political” questions in the latter, special
category).

															Much later, in Bell v. Hood , 327
U. S. 678, 684 (1946) , the Court wrote that,

															“where federally protected rights have
been invaded, it has been the rule from the beginning that courts
will be alert to adjust their remedies so as to grant the necessary
relief.”

															See also Bivens , 403 U. S., at 392
(citing opinions of Justices Cardozo and Holmes to similar
effect).

															The Bivens Court reiterated these
principles and confirmed that the appropriate remedial
“adjust[ment]” in the case before it was an award of money damages,
the “remedial mechanism normally available in the federal courts.” Id., at 392, 397. Justice Harlan agreed, adding that, since
Congress’ “general” statutory “grant of jurisdiction” authorized
courts to grant equitable relief in cases arising under federal
jurisdiction, courts likewise had the author-ity to award
damages—the “traditional remedy at law”—in order to “vindicate the
interests of the individual” protected by the Bill of Rights. Id., at 405–407 (opinion concur-ring in judgment).

															Second, our cases have recognized that Congress’
silence on the subject indicates a willingness to leave this matter
to the courts. In Bivens , the Court noted, as an argument
favoring its conclusion, the absence of an “explicit congressional
declaration that persons injured by a federal officer’s violation
of the Fourth Amendment may not recover money damages from the
agents.” Id., at 397. Similarly, in Davis v. Passman, the Court stressed that there was “no evidence
. . . that Congress meant . . . to foreclose” a
damages remedy. 442 U. S., at 247. In Carlson , the
Court went further, observing that not only was there no sign “that
Congress meant to pre-empt a Bivens remedy,” but there was
also “clear” evidence that Congress intended to preserve it. 446
U. S., at 19–20.

															Third, our Bivens cases acknowledge that
a constitutional tort may not lie when “special factors counse[l]
hesitation” and when Congress has provided an adequate alternative
remedy. 446 U. S., at 18–19. The relevant special factors in
those cases included whether the court was faced “with a question
of ‘federal fiscal policy,’ ” Bivens , supra, at
396, or a risk of “deluging federal courts with claims,” Davis , supra , at 248 (internal quotation marks
omitted). Carlson acknowledged an additional factor—that
damages suits “might inhibit [federal officials’] efforts to
perform their official duties”—but concluded that “the qualified
immunity accorded [federal officials] under [existing law] provides
adequate protection.” 446 U. S., at 19.

															Fourth, as the Court recognized later in Carlson , a Bivens remedy was needed to cure what
would, without it, amount to a constitutional anomaly. Long before
this Court incorporated many of the Bill of Rights’ guarantees
against the States, see Amar, The Bill of Rights and the Fourteenth
Amendment, 101 Yale L. J. 1193 (1992), federal civil rights
statutes afforded a damages remedy to any person whom a state
official deprived of a federal constitutional right, see 42
U. S. C. §1983; Monroe v. Pape , 365
U. S. 167 –187 (1961) (describing this history). But federal
statutory law did not provide a damages remedy to a person whom a
federal official had deprived of that same right, even though the
Bill of Rights was at the time of the founding primarily aimed at
constraining the Federal Government. Thus, a person harmed by an
unconstitutional search or seizure might sue a city mayor, a state
legislator, or even a Governor. But that person could not sue a
federal agent, a national legislator, or a Justice Department
official for an identical offense. “[Our] ‘constitutional
design,’ ” the Court wrote, “would be stood on its head if
federal officials did not face at least the same liability as state
officials guilty of the same constitutional transgression.” Carlson , supra, at 22 (quoting Butz v. Economou , 438 U. S. 478, 504 (1978) ).

															The Bivens Court also recognized that the
Court had previously inferred damages remedies caused by violations
of certain federal statutes that themselves did not explic-itly
authorize damages remedies. 403 U. S., at 395–396. At the same
time, Bivens, Davis, and Carlson treat the courts’
power to derive a damages remedy from a constitutional provision
not as included within a power to find a statute-based damages
remedy but as flowing from those statutory cases a
fortiori. As the majority opinion points out, this Court
in more recent years has indicated that “ expanding the Bivens remedy is now a ‘ disfavored’ judicial
activity.” Ante, at 11 (quoting Iqbal , 556
U. S., at 675; emphasis added). Thus, it has held that the
remedy is not available in the context of suits against military officers, see Chappell v. Wallace ,
462 U. S. 296 –300 (1983); United States v. Stanley , 483 U. S. 669 –684 (1987); in the context of
suits against privately operated prisons and their
employees, see Minneci v. Pollard , 565 U. S.
118, 120 (2012) ; Malesko , 534 U. S., at 70–73; in the
context of suits seeking to vindicate procedural, rather than
substantive, constitutional protections, see Schweiker v. Chilicky , 487 U. S. 412, 423 (1988) ; and in the
context of suits seeking to vindicate two quite different forms of
important substantive protection, one involving free speech, see Bush v. Lucas , 462 U. S. 367, 368 (1983) , and
the other involving protection of land rights, see Wilkie v. Robbins , 551 U. S. 537, 551 (2007) . Each of these
cases involved a context that differed from that of Bivens,
Davis , and Carlson with respect to the kind of
defendant, the basic nature of the right, or the kind of harm
suffered. That is to say, as we have explicitly stated, these cases
were “ fundamentally different from anything recognized in Bivens or subsequent cases.” Malesko , supra ,
at 70 (emphasis added). In each of them, the plaintiffs were asking
the Court to “ ‘authoriz[e] a new kind of federal
litigation.’ ” Wilkie , supra , at 550 (emphasis
added).

															Thus the Court, as the majority opinion says,
repeatedly wrote that it was not “expanding” the scope of the Bivens remedy. Ante, at 11. But the Court nowhere
suggested that it would narrow Bivens ’ existing scope. In
fact, to diminish any ambiguity about its holdings, the Court set
out a framework for determining whether a claim of constitutional
violation calls for a Bivens remedy. See Wilkie , supra , at 549–550. At Step One, the court must determine
whether the case before it arises in a “new context,” that is,
whether it involves a “new category of defendants,” Malesko , supra , at 68, or (presumably) a significantly different kind
of constitutional harm, such as a purely procedural harm, a harm to
speech, or a harm caused to physical property. If the context is
new , then the court proceeds to Step Two and asks
“whether any alternative, existing process for protecting the
interest amounts to a convincing reason for the Judicial Branch to
refrain from providing a new and freestanding remedy in damages.” Wilkie, 551 U. S., at 550. If there is none,
then the court proceeds to Step Three and asks whether there
are “ ‘any special factors counselling hesitation before
authorizing a new kind of federal litigation.’ ” Ibid .

															Precedent makes this framework applicable here.
I would apply it. And, doing so, I cannot get past Step One. This
suit, it seems to me, arises in a context similar to those in which
this Court has previously permitted Bivens actions.

															B

															1

															The context here is not “new,” Wilkie , supra , at 550, or “fundamentally different” than our
previous Bivens cases, Malesko , supra , at 70.
First, the plaintiffs are civilians, not members of the military.
They are not citizens, but the Constitution protects noncitizens
against serious mistreatment, as it protects citizens. See United States v. Verdugo-Urquidez , 494 U. S.
259, 271 (1990) (“[A]liens receive constitutional protections when
they have come within the territory of the United States and
developed substantial connections with this country”). Some or all
of the plaintiffs here may have been illegally present in the
United States. But that fact cannot justify physical mistreatment.
Nor does anyone claim that that fact deprives them of a Bivens right available to other persons, citizens and
noncitizens alike.

															Second, the defendants are Government officials.
They are not members of the military or private persons. Two are
prison wardens. Three others are high-ranking Department of Justice
officials. Prison wardens have been defendants in Bivens actions, as have other high-level Government officials. One of the
defendants in Carlson was the Director of the Bureau of
Prisons; the defendant in Davis was a Member of Congress. We
have also held that the Attorney General of the United States is
not entitled to absolute immunity in a damages suit arising out of
his actions related to national security. See Mitchell v. Forsyth , 472 U. S. 511, 520 (1985) .

															Third, from a Bivens perspective, the
injuries that the plaintiffs claim they suffered are familiar ones.
They focus upon the conditions of confinement. The plaintiffs say
that they were unnecessarily shackled, confined in small unhygienic
cells, subjected to continuous lighting (presumably preventing
sleep), unnecessarily and frequently strip searched, slammed
against walls, injured physically, and subject to verbal abuse.
They allege that they suffered these harms because of their race or
religion, the defendants having either turned a blind eye to what
was happening or themselves introduced policies that they knew
would lead to these harms even though the defendants knew the
plaintiffs had no connections to terrorism.

															These claimed harms are similar to, or even
worse than, the harms the plaintiffs suffered in Bivens (unreasonable search and seizure in violation of the Fourth
Amendment), Davis (unlawful discrimination in violation of
the Fifth Amendment), and Carlson (deliberate indifference
to medical need in violation of the Eighth Amendment).
Indeed, we have said that, “[i]f a federal prisoner in a [Bureau of
Prisons] facility alleges a constitutional deprivation, he may
bring a Bivens claim against the offending individual
officer, subject to the defense of qualified immunity.” Malesko , 534 U. S., at 72; see also Farmer v. Brennan , 511 U. S. 825, 832 (1994) ( Bivens case
about prisoner abuse). The claims in this suit would seem to fill
the Bivens’ bill. See Sell v. United States ,
539 U. S. 166, 193 (2003) (Scalia, J., dissenting) (“[A]
[ Bivens ] action . . . is available to federal
pretrial detainees challenging the conditions of their
confinement”).

															It is true that the plaintiffs bring their
“deliberate indifference” claim against Warden Hasty under the
Fifth Amendment’s Due Process Clause, not the Eighth Amendment’s
Cruel and Unusual Punishment Clause, as in Carlson . But that
is because the latter applies to convicted criminals while the
former applies to pretrial and immigration detainees. Where the
harm is the same, where this Court has held that both the Fifth and
Eighth Amendments give rise to Bivens’ remedies, and where
the only difference in constitutional scope consists of a
circumstance (the absence of a conviction) that makes the violation
here worse, it cannot be maintained that the difference between the
use of the two Amendments is “fundamental.” See City of
Revere v. Massachusetts Gen. Hospital , 463 U. S.
239, 244 (1983) (“due process rights” of an unconvicted person “are
at least as great as the Eighth Amendment protections available to
a convicted pris-oner”); Kingsley v. Hendrickson , 576
U. S. ___, ___–___ (2015) (slip op., at 10–11) (“pretrial
detainees (unlike convicted prisoners) cannot be punished at all”); Zadvydas v. Davis , 533 U. S. 678, 721 (2001)
(Kennedy, J., dissenting) (detention “incident to removal
. . . cannot be justified as punishment nor can the
confinement or its conditions be designed in order to punish”). See
also Bistrian v. Levi , 696 F. 3d 352, 372 (CA3
2012) (permitting Bivens action brought by detainee in
administrative segregation); Thomas v. Ashcroft , 470
F. 3d 491, 493, 496–497 (CA2 2006) (detainee alleging failure
to provide adequate medical care); Magluta v. Samples , 375 F. 3d 1269, 1271, 1275–1276 (CA11 2004)
(detainee in solitary confinement); Papa v. United
States , 281 F. 3d 1004, 1010–1011 (CA9 2002) (due process
claims arising from death of immigration detainee); Loe v. Armistead , 582 F. 2d 1291, 1293–1296 (CA4 1978)
(detainee’s claim of deliberate indifference to medical need). If
an arrestee can bring a claim of excessive force ( Bivens itself), and a convicted prisoner can bring a claim for denying
medical care ( Carlson ), someone who has neither been charged
nor convicted with a crime should also be able to challenge abuse
that causes him to need medical care.

															Nor has Congress suggested that it wants to
withdraw a damages remedy in circumstances like these. By its
express terms, the Prison Litigation Reform Act of 1995 (PLRA) does
not apply to immigration detainees. See 42 U. S. C.
§1997e(h) (“[T]he term ‘prisoner’ means any person incarcerated or
detained in any facility who is accused of, convicted of, sentenced
for, or adjudicated delinquent for, violations of criminal law
. . . ”); see also Agyeman v. INS , 296
F. 3d 871, 886 (CA9 2002) (“[W]e hold that an alien detained
by the INS pending deportation is not a ‘prisoner’ within the
meaning of the PLRA”); LaFontant v. INS , 135
F. 3d 158, 165 (CADC 1998) (same); Ojo v. INS ,
106 F. 3d 680, 683 (CA5 1997) (same). And, in fact, there is
strong evidence that Congress assumed that Bivens remedies
would be available to prisoners when it enacted the
PLRA— e.g. , Congress continued to permit prisoners to recover
for physical injuries, the typical kinds of Bivens injuries.
See 28 U. S. C. §1346(b)(2); Pfander, Constitutional
Torts, at 105–106.

															If there were any lingering doubt that the claim
against Warden Hasty arises in a familiar Bivens context,
the Court has made clear that conditions-of-confinement claims and
medical-care claims are subject to the same substantive standard.
See Hudson v. McMillian , 503 U. S. 1, 8 (1992)
(“[ Wilson v. Seiter , 501 U. S. 294, 303 (1991) ]
extended the deliberate indifference standard applied to Eighth
Amendment claims involving medical care to claims about conditions
of confinement”). Indeed, the Court made this very point in a Bivens case alleging that prison wardens were deliberately
indifferent to an inmate’s safety. See Farmer, supra , at
830, 834.

															I recognize that the Court finds a significant
difference in the fact that the confinement here arose soon after a
national-security emergency, namely, the September 11 attacks. The
short answer to this argument, in respect to at least some of the
claimed harms, is that some plaintiffs continued to suffer those
harms up to eight months after the September 11 attacks took place
and after the defendants knew the plaintiffs had no connection to
terrorism. See App. to Pet. for Cert. in No. 15–1359, p. 280a.
But because I believe the Court’s argument here is its strongest, I
will consider it at greater length below. See Part III–C, infra. Because the context here is not new, I would
allow the plaintiffs’ constitutional claims to proceed. The
plaintiffs have adequately alleged that the defendants were
personally involved in imposing the conditions of confinement and
did so with knowledge that the plaintiffs bore no ties to
terrorism, thus satisfying Iqbal ’s pleading standard. See
556 U. S., at 679 (claims must be “plausible”); see also id., at 699–700 (Breyer, J., dissenting). And because it is
clearly established that it is unconstitutional to subject
detainees to punitive conditions of confinement and to target them
based solely on their race, religion, or national origin, the
defendants are not entitled to qualified immunity on the
constitutional claims. See Bell v. Wolfish , 441
U. S. 520 –539, and n. 20 (1979); Davis , 442
U. S., at 236 (“It is equally clear . . . that the
Fifth Amendment confers on petitioner a constitutional right to be
free from illegal discrimination”). (Similarly, I would affirm the
judgment of the Court of Appeals with respect to the plaintiffs’
statutory claim, namely, that the defendants conspired to deprive
the plaintiffs of equal protection of the laws in violation of 42
U. S. C. §1985(3). See Turkmen v. Hasty ,
789 F. 3d 218, 262–264 (CA2 2015). I agree with the Court of
Appeals that the defendants are not entitled to qualified immunity
on this claim. See ibid. )

															2

															Even were I wrong and were the context here
“fundamentally different,” Malesko , 534 U. S., at 70,
the plaintiffs’ claims would nonetheless survive Step Two and Step
Three of the Court’s framework for determining whether Bivens applies, see supra , at 9. Step Two consists of
asking whether “any alternative, existing process for protecting
the interest amounts to a convincing reason for the Judicial Branch
to refrain from providing a new and freestanding remedy in
damages.” Wilkie, 551 U. S., at 550. I can find no such
“alternative, existing process” here.

															The Court does not claim that the PLRA provides
plaintiffs with a remedy. Ante, at 25–26. Rather, it says
that the plaintiffs may have “had available to them” relief
in the form of a prospective injunction or an application for a
writ of habeas corpus. Ante, at 22. Neither a prospective
injunction nor a writ of habeas corpus, however, will normally
provide plaintiffs with redress for harms they have already suffered. And here plaintiffs make a strong claim that neither was
available to them—at least not for a considerable time. Some of the
plaintiffs allege that for two or three months they were subject to
a “communications blackout”; that the prison “staff did not permit
them visitors, legal or social telephone calls, or mail”; that
their families and attorneys did not know where they were being
held; that they could not receive visits from their attorneys; that
subsequently their lawyers could call them only once a week; and
that some or all of the defendants “interfered with the detainees’
effective access to legal counsel.” Office of Inspector General
(OIG) Report, App. 223, 293, 251, 391; see App. to Pet. for Cert.
in No. 15–1359, at 253a (incorporating the OIG report into the
complaint). These claims make it virtually impossible to say that
here there is an “elaborate, comprehensive” alternative remedial
scheme similar to schemes that, in the past, we have found block
the application of Bivens to new contexts. Bush , 462
U. S., at 385. If these allegations are proved, then in this
suit, it is “damages or noth-ing.” Bivens , 403 U. S.,
at 410 (Harlan, J., concurring in judgment).

															There being no “alternative, existing process”
that provides a “convincing reason” for not applying Bivens, we must proceed to Step Three. Wilkie , supra , at
550 . Doing so, I can find no “special factors [that]
counse[l] hesitation before authorizing” this Bivens action.
551 U. S., at 550. I turn to this matter next.

															II

															A

															The Court describes two general considerations
that it believes argue against an “extension” of Bivens. First, the majority opinion points out that the Court is now far
less likely than at the time it decided Bivens to imply a
cause of action for damages from a statute that does not explicitly
provide for a damages claim. See ante, at 8–9. Second, it
finds the “silence” of Congress “notable” in that Congress, though
likely aware of the “high-level policies” involved in this suit,
did not “choose to extend to any person the kind of remedies” that
the plaintiffs here “seek.” Ante, at 20–21 (internal
quotation marks omitted). I doubt the strength of these two general
considerations.

															The first consideration, in my view, is not
relevant. I concede that the majority and concurring opinions in Bivens looked in part for support to the fact that the Court
had implied damages remedies from statutes silent on the
subject. See 403 U. S., at 397; id., at 402–403
(Harlan, J., concurring in judgment). But that was not the main
argument favoring the Court’s conclusion. Rather, the Court drew
far stronger support from the need for such a remedy when measured
against a common-law and constitutional history of allowing
traditional legal remedies where necessary. Id., at 392,
396–397. The Court believed such a remedy was necessary to make
effective the Constitution’s protection of certain basic individual
rights. See id., at 392; id., at 407 (opinion of
Harlan, J.). Simi-larly, as the Court later explained, a damages
remedy against federal officials prevented the serious legal
anomaly I previously mentioned. Its existence made basic
constitutional protections of the individual against Federal Government abuse (the Bill of Rights’ pre-Civil War objective) as
effective as protections against abuse by state officials
(the post-Civil War, post selective-incorporation objective). See supra, at 7 . Nor is the second circumstance—congressional
silence—relevant in the manner that the majority opinion describes.
The Court initially saw that silence as indicating an absence of
congressional hostility to the Court’s exercise of its traditional
remedy-inferring powers. See Bivens , supra, at 397; Davis, 442 U. S., at 246–247. Congress’ subsequent
silence contains strong signs that it accepted Bivens actions as part of the law. After all, Congress rejected a proposal
that would have eliminated Bivens by substituting the
U. S. Government as a defendant in suits against federal
officers that raised constitutional claims. See Pfander,
Constitutional Torts, at 102. Later, Congress expressly immunized
federal employees acting in the course of their official duties
from tort claims except those premised on violations of the
Constitution. See Federal Employees Liability Reform and Tort
Compensation Act of 1988, commonly known as the Westfall Act, 28
U. S. C. §2679(b)(2)(A). We stated that it is
consequently “crystal clear that Congress views [the Federal Tort
Claims Act] and Bivens as [providing] parallel,
complementary causes of action.” Carlson , 446 U. S., at
20; see Malesko , 534 U. S., at 68 (similar). Congress
has even assumed the existence of a Bivens remedy in suits
brought by noncitizen detainees suspected of terrorism. See 42
U. S. C. §2000dd–1 (granting qualified immunity—but not
absolute immunity—to military and civilian federal officials who
are sued by alien detainees suspected of terrorism).

															B

															The majority opinion also sets forth a more
specific list of factors that it says bear on “whether a case
presents a new Bivens context.” Ante, at 16. In the
Court’s view, a “case might differ” from Bivens “in a
meaningful way because of [1] the rank of the officers involved;
[2] the constitutional right at issue; [3] the generality or
specifi-city of the individual action; [4] the extent of judicial
guidance as to how an officer should respond to the problem or
emergency to be confronted; [5] the statutory or other legal
mandate under which the officer was operating; [6] the risk of
disruptive intrusion by the Judiciary into the functioning of other
branches; [7] or the presence of potential special factors that
previous Bivens cases did not con-sider.” Ante, at
16. In my view, these factors do not make a “meaningful difference”
at Step One of the Bivens framework. Some of them are better
cast as “special factors” relevant to Step Three. But, as I see it,
none should normally foreclose a Bivens action and none is
determinative here. Consider them one by one:

															(1) The rank of the officers. I can
understand why an officer’s rank might bear on whether he violated
the Constitution, because, for example, a plaintiff might need to
show the officer was willfully blind to a harm caused by lower
ranking officers or that the officer had actual knowledge of the
misconduct. And I can understand that rank might relate to the
existence of a legal defense, such as qualified, or even absolute,
immunity. But if —and I recognize that this is often a very
big if—a plaintiff proves a clear constitutional violation, say, of
the Fourth Amendment, and he shows that the defendant does
not possess any form of immunity or other defense, then why
should he not have a damages remedy for harm suffered? What does
rank have to do with that question , namely, the Bivens question? Why should the law treat differently a
high-level official and the local constable where each has
similarly violated the Constitution and where neither can
successfully assert immunity or any other defense?

															(2) The constitutional right at issue. I
agree that this factor can make a difference, but only when the
substance of the right is distinct. See, e.g., Wilkie , 551
U. S. 537 (land rights). But, for reasons I have already
pointed out, there is no relevant difference between the rights at
issue here and the rights at issue in our previous Bivens cases, namely, the rights to be free of unreasonable searches,
invidious discrimination, and physical abuse in federal custody.
See supra, at 10–11.

															(3) The generality or specificity of the
individual action. I should think that it is not the
“generality or specificity” of an official action but rather the
nature of the official action that matters. Bivens should
apply to some generally applicable actions, such as actions taken
deliberately to jail a large group of known-innocent people. And it
should not apply to some highly specific actions, depending upon
the nature of those actions.

															(4) The extent of judicial guidance. This
factor may be relevant to the existence of a constitutional
violation or a qualified-immunity defense. Where judicial guidance
is lacking, it is more likely that a constitutional violation is
not clearly established. See Anderson v. Creighton ,
483 U. S. 635, 640 (1987) (Officials are protected by
qualified immunity unless “[t]he contours of the right [are]
sufficiently clear that a reasonable official would understand that
what he is doing violates that right”). But I do not see how,
assuming the violation is clear, the presence or absence of
“judicial guidance” is relevant to the existence of a damages
remedy.

															(5) The statutory (or other) legal mandate
under which the officer was operating. This factor too may
prove relevant to the question whether a constitutional violation
exists or is clearly established. But, again, assuming that it is,
I do not understand why this factor is relevant to the existence of
a damages remedy. See Stanley , 483 U. S., at 684 (the
question of immunity is “analytically distinct” from the question
whether a Bivens action should lie).

															(6) Risk of disruptive judicial
intrusion. All damages actions risk disrupting to some degree
future decisionmaking by members of the Executive or Legislative
Branches. Where this Court has authorized Bivens actions, it
has found that disruption tolerable, and it has explained why
disruption is, from a constitutional perspective, desirable. See Davis , 442 U. S., at 242 (Unless constitutional rights
“are to become merely precatory, . . . litigants who
allege that their own constitutional rights have been violated, and
who at the same time have no effective means other than the
judiciary to enforce these rights, must be able to invoke the
existing jurisdiction of the courts for . . .
protection”); Malesko , supra , at 70 (“The purpose of Bivens is to deter individual federal officers from
committing constitutional violations”). Insofar as the Court means
this consideration to provide a reason why there should be no Bivens action where a Government employee acts in time of
security need, I shall discuss the matter next, in Part
C . (7) Other potential special factors. Since I am not certain what these other “potential factors” are
and, since the Court does not specify their nature, I would not,
and the Court cannot, consider them in differentiating this suit
from our previous Bivens cases or as militating against
recognizing a Bivens action here.

															C

															In my view, the Court’s strongest argument is
that Bivens should not apply to policy-related actions taken
in times of national-security need, for example, during war or
national-security emergency. As the Court correctly points out, the
Constitution grants primary power to protect the Nation’s security
to the Executive and Legislative Branches, not to the Judiciary.
But the Constitution also delegates to the Judiciary the duty to
protect an individual’s fundamental constitutional rights. Hence
when protection of those rights and a determination of security
needs conflict, the Court has a role to play. The Court most
recently made this clear in cases arising out of the detention of
enemy combatants at Guantanamo Bay. Justice O’Connor wrote that “a
state of war is not a blank check.” Hamdi v. Rumsfeld , 542 U. S. 507, 536 (2004) (plurality
opinion). In Boumediene , 553 U. S., at 732–733, the
Court reinforced that point, holding that noncitizens detained as
enemy combatants were entitled to challenge their detention through
a writ of habeas corpus, notwithstanding the national-security
concerns at stake.

															We have not, however, answered the specific
question the Court places at issue here: Should Bivens actions continue to exist in respect to policy-related actions
taken in time of war or national emergency? In my view, they
should.

															For one thing, a Bivens action comes
accompanied by many legal safeguards designed to prevent the courts
from interfering with Executive and Legislative Branch activity
reasonably believed to be necessary to protect national security.
In Justice Jackson’s well-known words, the Constitution is not “a
suicide pact.” Terminiello v. Chicago , 337 U. S.
1, 37 (1949) (dissenting opinion). The Consti-tution itself takes
account of public necessity. Thus, for example, the Fourth
Amendment does not forbid all Government searches and
seizures; it forbids only those that are “unreasonable.”
Ordinarily, it requires that a police officer obtain a search
warrant before entering an apartment, but should the officer
observe a woman being dragged against her will into that apartment,
he should, and will, act at once. The Fourth Amendment makes
allowances for such “exigent circumstances.” Brigham City v. Stuart , 547 U. S. 398, 401 (2006) (warrantless entry
justified to forestall imminent injury). Similarly, the Fifth
Amendment bars only conditions of confinement that are not
“reasonably related to a legitimate governmental objective.” Bell v. Wolfish , 441 U. S., at 539. What is
unreasonable and illegitimate in time of peace may be reasonable
and legitimate in time of war.

															Moreover, Bivens comes accompanied with a
qualified-immunity defense. Federal officials will face suit only
if they have violated a constitutional right that was “clearly
established” at the time they acted. Harlow , 457 U. S.,
at 818.

															Further, in order to prevent the very presence
of a Bivens lawsuit from interfering with the work of a
Government official, this Court has held that a com-plaint must
state a claim for relief that is “plausible.” Iqbal , 556
U. S., at 679. “[C]onclusory” statements and “[t]hreadbare”
allegations will not suffice. Id., at 678. And the Court has
protected high-level officials in particular by requiring that
plaintiffs plead that an official was personally involved in the
unconstitutional conduct; an official cannot be vicariously liable
for another’s misdeeds. Id., at 676.

															Finally, where such a claim is filed, courts
can, and should, tailor discovery orders so that they do not
unnecessarily or improperly interfere with the official’s work. The
Second Circuit has emphasized the “need to vindicate the purpose of
the qualified immunity defense by dismissing non-meritorious claims
against public officials at an early stage of litigation.” Iqbal v. Hasty , 490 F. 3d 143, 158 (2007). Where
some of the defendants are “current or former senior officials of
the Government, against whom broad-ranging allegations of knowledge
and personal involvement are easily made, a district court” not
only “may, but ‘ must exercise its discretion in a way that
protects the substance of the qualified immunity defense
. . . so that’ ” those officials “ ‘are not
subjected to unnecessary and burdensome discovery or trial
proceedings.’ ” Id., at 158–159. The court can make
“all such discovery subject to prior court approval.” Id., at 158. It can “structure . . . limited discovery by
examining written responses to interrogatories and requests to
admit before authorizing depositions, and by deferring discovery
directed to high-level officials until discovery of front-line
officials has been completed and has demonstrated the need for
discovery higher up the ranks.” Ibid. In a word, a trial
court can and should so structure the proceedings with full
recognition that qualified immunity amounts to immunity from suit
as well as immunity from liability.

															Given these safeguards against undue
interference by the Judiciary in times of war or national-security
emergency, the Court’s abolition, or limitation of, Bivens actions goes too far. If you are cold, put on a sweater, perhaps an
overcoat, perhaps also turn up the heat, but do not set fire to the
house.

															At the same time, there may well be a particular
need for Bivens remedies when security-related Government
actions are at issue. History tells us of far too many instances
where the Executive or Legislative Branch took actions during time
of war that, on later examination, turned out unnecessarily and
unreasonably to have deprived American citizens of basic
constitutional rights. We have read about the Alien and Sedition
Acts, the thousands of civilians imprisoned during the Civil War,
and the suppression of civil liberties during World War I. See W.
Rehnquist, All the Laws but One: Civil Liberties in Wartime
209–210, 49–50, 173–180, 183 (1998); see also Ex parte Milligan , 4 Wall. 2 (1866) (decided after the Civil
War was over). The pages of the U. S. Reports themselves
recite this Court’s refusal to set aside the Government’s World War
II action removing more than 70,000 American citizens of Japanese
origin from their west coast homes and interning them in camps, see Korematsu v. United States , 323 U. S. 214 (1944)
—an action that at least some officials knew at the time was
unnecessary, see id., at 233–242 (Murphy, J., dissenting);
P. Irons, Justice at War 202–204, 288 (1983). President Franklin
Roosevelt’s Attorney General, perhaps exaggerating, once said that
“[t]he Constitution has not greatly bothered any wartime
President.” Rehnquist, supra , at 191.

															Can we, in respect to actions taken during those
periods, rely exclusively, as the Court seems to suggest, upon
injunctive remedies or writs of habeas corpus, their retail
equivalent? Complaints seeking that kind of relief typi-cally come
during the emergency itself, when emotions are strong, when courts
may have too little or inaccurate information, and when courts may
well prove particularly reluctant to interfere with even the least
well-founded Executive Branch activity. That reluctance may itself
set an unfortunate precedent, which, as Justice Jackson pointed
out, can “li[e] about like a loaded weapon” awaiting discharge in
another case. Korematsu , supra, at 246 (dissenting
opinion).

															A damages action, however, is typically brought
after the emergency is over, after emotions have cooled, and at a
time when more factual information is available. In such
circumstances, courts have more time to exercise such judicial
virtues as calm reflection and dispassionate ap-plication of the
law to the facts. We have applied the Constitution to actions taken
during periods of war and national-security emergency. See Boumediene , 553 U. S. , at 732–733; Hamdi v. Rumsfeld , 542 U. S. 507 ; cf. Youngstown Sheet
& Tube Co. v. Sawyer , 343 U. S. 579 (1952) . I
should think that the wisdom of permitting courts to consider Bivens actions, later granting monetary compensation to
those wronged at the time, would follow a fortiori .

															As is well known, Lord Atkins, a British judge,
wrote in the midst of World War II that “amid the clash of arms,
the laws are not silent. They may be changed, but they speak the
same language in war as in peace.” Liversidge v. Anderson , [1942] A. C. 206 (H. L. 1941) 244. The Court, in
my view, should say the same of this Bivens action.

															With respect, I dissent.

Summary: The Supreme Court ruled on a case regarding the detention of hundreds of illegal aliens in harsh conditions following the September 11 terrorist attacks, with some detainees filing suit against the Department of Justice and wardens of the facility. The Court's opinion, delivered by Justice Kennedy, addressed the claims of constitutional violations and sought damages under Bivens v. Six Unknown Fed. Narcotics Agents. The Court's decision considered the context of national security emergencies and the potential for executive branch overreach, acknowledging the importance of judicial intervention to protect constitutional rights. However, the Court's ruling was not unanimous, with one justice dissenting and expressing concern about the potential for executive branch overreach and the need for judicial intervention to protect citizens' liberties.