# Appendix — Ziglar v. Turkmen, 137 S. Ct. 292 (2016) (No. 15-1358) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0663%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2016 ## Text IN THE Supreme Court of the Ginited States JAMES W. ZIGLAR, Petitioner, Vv. IBRAHIM TURKMEN, AKHIL SACHDEVA, AHMER IQBAL ABBASI, ANSER MEHMOOD, BENAMAR BENATTA, AHMED KHALIFA, SAEED HAMMOUDA, AND PURNA BAJRACHARYA, Respondents. ON PETITION FoR A WRIT OF CERTIORARI To THE UNITED STATES COURT OF APPEALS For THE SECOND CIRCUIT APPENDIX TO PETITION FOR A WRIT OF CERTIORARI WILLIAM ALDEN MCDANIBL, JR. Counsel of Record’ Michelle M. McGeogh BALLARD SPAHR LLP 300 E. Lombard Street, 18" Floor Baltimore, Maryland 21202 410.528.5502 medanielw@ballardspabr.com Counsel For Petitioner, James W. Ziglar WALSON-EPES PRINTING CO.INC - a ~ WASHINGTON. D.C. 20002 TABLE OF CONTENTS Page Appendix A: Opinion, United States Court Of Appeals For The Second Circuit, Pee ee Es 6 wR hs oe 8 fe hho pene seh eeae la Appendix A(1): Majority Opinion........... la Appendix A(2): Dissenting Opinion......... 83a Appendix B: Memorandum & Order, United States District Court For The Eastern District Of New pO a Re re oe eee 157a Appendix C: Order, Denying Rehearing and Rehearing En Banc, December 11, 2015. ..... 227a Appendix C(1): Opinion, Concurring In Denial of En ikawceaen Goede ee bes 229a Appendix C(2): Opinion, Dissenting From Denial OF ey TD IND onc coc dvece cicnesicia 231la Appendix D: Relevant Constitutional PSS coc coe tau S cae owas ens os 241a Appendix E: Fourth Amended Complaint, OU CP onc cs eben eecuesaeees 244a Appendix F: Report, “The September 11 Detainees,” Office of the Inspector General, United States Department of Justice, April, 2003 ......... 342a APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Nos. 13-981, 13-999, 13-1002, 13-1003, 13-1662 IBRAHIM TURKMEN, AKHIL SACHDEVA, AHMER IQBAL ABBAS!I, ANSER MEHMOOD, BENAMAR BENATTA, AHMED KHALIFA, SAEED HAMMOUDA, PURNA BAJRACHARYA, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellees-Cross-Appellants, Vv. DENNIS HASTY, FORMER WARDEN OF THE METROPOLITAN DETENTION CENTER; MICHAEL ZENK, FORMER WARDEN OF THE METROPOLITAN DETENTION CENTER; JAMES SHERMAN, FORMER METROPOLITAN DETENTION CENTER ASSOCIATE WARDEN FOR CUSTODY, Defendants-Appellants, JOHN ASHCROFT, FORMER ATTORNEY GENERAL OF THE UNITED STATES; ROBERT MUELLER, FORMER DIRECTOR, FEDERAL BUREAU OF INVESTIGATION; JAMES W. ZIGLAR, FORMER COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, Defendants-Cross-Appellees, SALVATORE LOPRESTI, FORMER METROPOLITAN DETENTION CENTER CAPTAIN; JOSEPH CUCITI, FORMER METROPOLITAN DETENTION CENTER LIEUTENANT, Defendants. * * The Clerk of the Court is directed to amend the caption as set forth above. (la) 2a Appeal from the United States District Court for the Eastern District of New York OPINION Argued: May 1, 2014 Decided: June 17, 2015 Before POOLER, RAGGI, and WESLEY, Circuit Judges. Appeal from a January 15, 2013 Memorandum and Order of the United States District Court for the Eastern District of New York (Gleeson, J.) granting in part and denying in part Defendants’ motions to dismiss. Cross- appeal from an April 10, 2013 Judgment of the United States District Court for the Eastern District of New York (Gleeson, J.), which was entered pursuant to Rule 54(b) of the Federal Rules of Civil Procedure on April 11, 2013, granting certain Defendants’ motions to dismiss. We AFFIRM in part and REVERSE in part. Judge Raggi concurs in part in the judgment and dissents in part in a separate opinion. POOLER and WESLEY, Circuit Judges. On September 11, 2001, “19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda” hijacked four airplanes and killed over 3,000 peo- ple on American soil. Ashcroft v. Iqbal (/qbal), 556 U.S. 662, 682 (2009). This case raises a difficult and delicate 3a set of legal issues concerning individuals who were caught up in the post-9/11 investigation even though they were unquestionably never involved in terrorist activity. Plaintiffs are eight male, “out-of-status” aliens’ who were arrested on immigration charges and detained following the 9/11 attacks. Plaintiffs were held at the Metropolitan Detention Center (the “MDC”) in Brooklyn, New York, or the Passaic County Jail (“Passaic”) in Paterson, New Jersey; their individual detentions generally ranged from approximately three to eight months. The operative complaint, a putative class action, as- serts various claims against former Attorney General John Ashcroft; former Director of the Federal Bureau of Investigation (the “FBI”) Robert Mueller; former Com- missioner of the Immigration and Naturalization Service (the “INS”) James Ziglar; former MDC Warden Dennis Hasty; former MDC Warden Michael Zenk; and former MDC Associate Warden James Sherman.’ All claims arise out of allegedly discriminatory and punitive treat- ment Plaintiffs suffered while confined at the MDC or Passaic. ' We use the term “out-of-status” alien to mean one who has either (1) entered the United States illegally and is deportable if appre- hended, or (2) entered the United States legally but who has fallen “out of status” by violating the rules or guidelines for his nonimmi- grant status (often by overstaying his visa) in the United States and is deportable. * Wor ease of reference, we refer to Ashcroft, Mueller, and Ziglar col- lectively as the “Department of Justice (‘DOJ’) Defendants,” and Hasty, Sherman, and Zenk collectively as the “MDC Defendants.” The operative complaint also alleges claims against MDC officials Joseph Cuciti and Salvatore Lopresti. Cuciti did not appeal the dis- trict court’s decision, and Lopresti filed a notice of appeal but did not timely pay the filing fee or file a brief. Lopresti’s appeal was dis- missed pursuant to Federal Rule of Appellate Procedure 31(c). Thus, we do not address the claims against Cuciti and Lopresti. 4a BACKGROUND I. PROCEDURAL HISTORY* Plaintiffs initiated this action over thirteen years ago on April 17, 2002. Over the following two and one-half years, Plaintiffs amended their complaint three times. In June 2006, following a series of motions to dismiss, the district court dismissed Plaintiffs’ unlawful-length-of- detention claims but permitted to proceed, inter alia, the substantive due process and equal protection claims chal- lenging the conditions of confinement at the MDC. See Turkmen v. Ashcroft (Turkmen I), No. 02 CV 2307(JG), 2006 WL 1662663, at *33-36, 40-41 (E.D.N.Y. June 14, 2006), aff’d in part, vacated in part, Turkmen v. Ashcroft (Turkmen II), 589 F.3d 542 (2d Cir. 2009) (per curiam), remanded to Turkmen III, 915 F. Supp. 2d at 314. Plain- tiffs and Defendants appealed various aspects of that rul- ing. Two significant events occurred while the appeal was pending. First, six of the original eight named Plaintiffs at that time withdrew or settled their claims against the government. See Turkmen I, 589 F.3d at 544 n.1, 545. This left only Ibrahim Turkmen and Akhil Sachdeva, both of whom were detained at Passaic, as opposed to the MDC. Second, the Supreme Court issued /qbal, 556 U.S. at 662, which altered the pleading regime governing Plaintiffs’ claims. In light of these events and the re- maining Plaintiffs’ stated desire to replead claims unique to the settling Plaintiffs, this Court affirmed the dismis- sal of the length of detention claims but vacated and re- manded with respect to the conditions of confinement claims. See Turkmen I1, 589 F.3d at 546-47, 549-50. * For a more comprehensive review of this case’s procedural history, see Turkmen v. Ashcroft (Turkmen ITT), 915 F. Supp. 2d 314, 331-38 (E.D.N.Y. 2013). 5a On remand, the district court permitted Plaintiffs to amend their complaint and granted leave for six addi- tional Plaintiffs, all of whom had been held at the MDC, to intervene. The eight current named Plaintiffs are of Middle Eastern, North African, or South Asian origin; six of them are Muslim, one is Hindu, and one is Buddhist. The Fourth Amended Complaint (the “Complaint”), the operative complaint in this case, restates Plaintiffs’ puta- tive class claims on behalf of the “9/11 detainees,” a class of similarly situated non-citizens who are Arab or Mus- lim, or were perceived by Defendants as Arab or Muslim, and were arrested and detained in response to the 9/11 attacks." The Complaint dramatically winnowed the relevant claims and defendants; it alleges seven claims against eight defendants. The first six claims, all brought pursu- ant to Bivens v. Sia Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), are: (1) a condi- tions of confinement claim under the Due Process Clause; (2) an equal protection claim alleging that Defendants subjected Plaintiffs to the challenged conditions because of their, or their perceived, race, religion, ethnicity, and/or national origin; (3) a claim arising under the Free Exercise Clause; (4) and (5) two claims generally alleging interference with counsel; and (6) a claim under the Fourth and Fifth Amendments alleging unreasonable and punitive strip searches. The seventh and final claim alleges a conspiracy under 42 U.S:C. § 1985(3). The DOJ ‘ Benamar Benatta was originally detained by Canadian authorities on September 5, 2001, after crossing the Canadian border with false documentation. Following the September 11 attacks, Benatta was transported back to the United States and detained in the challenged conditions of confinement and pursuant to the post-9/11 investiga- tion; therefore, we call him a “9/11 detainee.” 6a and MDC Defendants moved to dismiss the Complaint for failure to state a claim, on qualified immunity grounds, and, in some instances, based on a theory that Bivens relief did not extend to the claim at issue. If. THE OIG REPORTS Plaintiffs supplemented the factual allegations in their amended complaints with information gleaned from two reports by the Office of the Inspector General of the United States Department of Justice (the “OIG re- ports”) that documented the federal law enforcement re- sponse to 9/11 and conditions at the MDC and Passaic. The OIG reports, which the Complaint “incorporate|s| by reference except where contradicted by the allega- tions of [the Complaint|,” Compl. 13 n.1, see also id. 15 n.2, play a significant role in this case.’ Primarily, the * There are two OIG reports. ‘The first OIG report, published in June 2003, covers multiple aspects of law enforcement’s response to 9/11. See U.S. Dep’t of Justice, Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (April 2003) (the “OIG Report”), available at http://www justice.gov/oig/special/0306/full.pdf. The second OIG re- port, published in December 2003, focuses on abuses at the MDC. See U.S. Dep’t of Justice, Office of the Inspector General, Supple- mental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York (Dee. 2003) (the “Supplemental OIG Report”), available at http://www. justice.gov/oig/special/0312/final.pdf. * Various Defendants challenge the district court’s decision to con- sider the OIG reports to the extent that they are not contradicted by the Complaint. Defendants are correct that a complaint “include{s] any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Cortec Indus., Ine. v. Sam Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991); accord DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). But their ob- jection misses the point. The district court accurately explained that at the pleading stage, although we must. consider the words on the 7a OIG reports provide invaluable context for the unprece- dented challenges following 9/11 and the various strate- gies federal agencies employed to confront these chal- lenges. The reports help orient our analysis of the Com- plaint. IL. PLAINTIFFS’ ALLEGATIONS’ In the aftermath of the 9/11 attacks, the FBI and oth- er agencies within the DOJ immediately initiated an im- mense investigation aimed at identifying the 9/11 perpe- trators and preventing any further attacks. See OIG Re- port at 1, 11-12. PENTTBOM, the Pentagon/Twin Tow- ers Bombings investigation, was initially run out of the FBI’s field offices, but shortly thereafter, Mueller or- dered that management of the investigation be switched to the 'BI’s Strategic Information and Operations Cen- ter (the “SIOC”) at FBI Headquarters in Washington, D.C. Mueller personally directed PENTTBOM from the SIOC and remained in daily contact with FBI field of- fices. In conjunction with PENTTBOM, the Deputy Attor- ney General's Office (the “DAG’s Office”) established the page (that is, we cannot disregard the fact that the OIG reports make particular findings), we need not consider the truth of those words to the extent disputed by Plaintiffs. See Turkmen 1/1, 915 F. Supp. 2d at 342 n.14 (citing DiFolco, 622 F.3d at 111). Even were we to view the OIG reports as fully incorporated, reliance on any asser- tion of fact requires a credibility assessment that we are fundament- ally unsuited to undertake at the Rule 12(b)(6) stage. And although the OIG reports cannot determinatively prove or disprove Plaintiffs’ allegations, they remain relevant to our analysis because they sup- plement our understanding of the law enforcement response to 9/11. "The allegations set forth herein are drawn from the Complaint and those portions of the OIG reports incorporated by reference. See supra note 6. We presume the veracity of Plaintiffs’ well-pleaded al- legations. Iqbal, 556 U.S. at 679. Sa SLOC Working Group to coordinate “efforts among the various components within the |DOJ]| that had an investi- gative interest in|,] or responsibility for|,] the September 11 detainees.” /d. at 15... The SIOC Working Group in- cluded representatives from, among other agencies, the FBI, the INS, and the DAG’s Office. This group met dai- ly—if not multiple times in a single day—in the months following 9/11; its duties included “coordinat|ing| infor- mation and evidence sharing among the FBI, INS, and U.S. Attorneys’ offices” and “ensur[ing]| that aliens de- tained as part of the PENTTBOM investigation would not be released until they were cleared by the FBI of in- volvement with the September 11 attacks or terrorism in general.” /d. Given that the 9/11 hijackers were all foreign nation- als, the DOJ response carried a major immigration law component. See zd. at 12. Ashcroft and Mueller devel- oped “a policy whereby any Muslim or Arab man encoun- tered during the investigation of a tip received in the 9/11 terrorism investigation ... and discovered to be a non-citizen who had violated the terms of his visa, was arrested.” Compl. 11; see also id. 1939-49. Ashcroft also created the related “hold-until-cleared” policy, which mandated that individuals arrested in the wake of 9/11 not be released from “custody until | BI Headquarters | affirmatively cleared them of terrorist ties.” /d. 12; see also OIG Report at 38-39. Within a week of 9/11, the FBI had received approxi- mately 96,000 tips from civilians across the country. These tips varied significantly in quality and reliability.’ * The SIOC Working Group acquired this name because its initial meetings occurred at the FBI’s SIOC. ” For instance, Turkmen came to the FBI's attention when his land- lord called the FBI's 9/11 hotline and reported “that she rented an 9a “Mueller [nonetheless] ordered that every one of these tips be investigated, even if they were implausible on their face.” Compl. 140. Ultimately, 762 detainees were placed on the INS Custody List (the “INS List”) that then made them subject to Asheroft’s hold-until-cleared policy. In the months following 9/11, the DOJ Defendants “received detailed daily reports of the arrests and deten- tions.” Jd. 947. Ashcroft and Mueller also “met regular- ly with a small group of government officials in Washing- ton, D.C., and mapped out ways to exert maximum pres- sure on the individuals arrested in connection with the terrorism investigation.” /d. 161." This small group “discussed and decided upon a strategy to restrict the 9/11 detainees’ ability to contact the outside world and apartment in her home to several Middle Eastern men, and she ‘would feel awful if her tenants were involved in terrorism and she didn’t call.’"” Compl. 1251. “The FBI knew that her only basis for suspecting these men was that they were Middle Fastern; indeed, she reported that they were good tenants, and paid their rent on time.” Jd. Another alien was arrested after the FBI received a tip that stated that the small grocery store where he worked was over- staffed, thus arousing the tipster’s suspicions about the “Middle Eastern men” that worked there. OLG Report at 17. " It is unclear whether this “small group” refers to the SLOC Work- ing Group or a distinct group involving Ashcroft, Mueller, and other senior Washington, D.C., officials. One possibility is that Plaintiffs are referring to the small group that consisted of Asheroft, Mueller, Michael Chertoff, who was then Assistant Attorney General of the Criminal Division, and the Deputy Attorney General. See OIG Re- port at 13. According to Chertoff, this group discussed the DOJ's post-9/11 law enforcement strategy and policies. Given the makeup of this group and the SLOC Working Group, it is reasonable to infer that information flowed between them; for instance, Chertoff’s depu- ty, Alice Fisher, was placed in charge of immigration issues for the Criminal Division and personally established the SIOC Working Group. 10a delay their immigration hearings. The group also decid- ed to spread the word among law enforcement personne! that the 9/11 detainees were suspected terrorists] | ... and that they needed to be encouraged in any way possi- ble to cooperate.” /d. Plaintiffs, with the exception of Turkmen and Sachde- va, were held at the MDC. Under MDC confinement po!l- icy, the 9/11 detainees placed in the MDC were held in the MDC’s Administrative Maximum Special Housing Unit (the “ADMAX SHU”)—“a particularly restrictive type of SHU not found in most [Bureau of Prisons (‘BOP’)} facilities because the normal SHU is usually suf- ficient for correcting inmate misbehavior and addressing security concerns.” /d. 176. The confinement policy was created by the MDC Defendants “in consultation with the FBL.” /d. 165. ‘onditions in the ADMAX SHU were severe and be gan to receive media attention soon after detentions be gan. See OIG Report at 2, 5. Detainees were: “placed in tiny cells for over 23 hours a day,” Compl. 45; “strip-searched every time they were removed from or returned to their cells], ... even when they had no con- ceivable opportunity to obtain contraband,” id. 9112; provided with “meager and barely edible” food, id. 4128; denied sleep by “bright lights” that were left on in their cells for 24 hours a day, id. 1119, and, “[o|n some occa- sions, correctional officers walked by every 20 minutes throughout the night, kicked the doors to wake up the de- tainees, and yelled” highly degrading and offensive com- ments, 7d. 1120; constructively denied recreation and ex- posed to the elements, see id. 19 122-23; “denied access to basic hygiene items like toilet paper, soap, towels, tooth- paste, [and] eating utensils,” id. 1130; and prohibited from moving around the unit, using the telephone freely, lla using the commissary, or accessing MDC handbooks, which explained how to file complaints about mistreat- ment, see id. 1976, 83, 129, 140. MDC staff also subjected the 9/11 detainees to fre- quent physical and verbal abuse. The abuse included slamming the 9/11 detainees into walls; bending or twist- ing their arms, hands, wrists, and fingers; lifting them off the ground by their arms; pulling on their arms and handcuffs; stepping on their leg restraints; restraining them with handcuffs and/or shackles even while in their cells; and handling them in other rough and inappropri- ate ways. See id. 1105; see also Supplemental OIG Re- port at 8-28. MDC staff also referred to the 9/11 detain- ees as “‘terrorists,’ and other offensive names; threat- enjled| them with violence; curs|ed] at them; insult|ed] their religion; and ma|de| humiliating sexual comments during strip-searches.” Compl. 1109. Specifically, Plain- tiffs and putative class members at the MDC were re- ferred to by staff as “camells],” “fucking Muslims,” and “Arabic asshole[s],” id. 19 110, 147, 2i8. The MDC Plaintiffs did not receive copies of the Ko- ran for weeks or months after requesting them, and one Plaintiff never received a copy, “pursuant to a written MDC policy ... that prohibited the 9/11 detainees from keeping anything, including a Koran, in their cell[s].” /d. 1132. The MDC Plaintiffs were also “denied the Halal food required by their Muslim faith.” /d. 9133. And “MDC staff frequently interrupted Plaintiffs’ and class members’ prayers,” including “by banging on cell doors,” yelling derogatory comments, and mocking the detainees while they prayed. /d. 1136. The named MDC Plaintiffs’ individual experiences— several of which are highlighted below—add further tex- 12a ture to their collective allegations concerning the arrest and confinement of the 9/11 detainees. A. Anser Mehmood Mehmood, a citizen of Pakistan and devout Muslim, entered the United States on a business visa in 1989 with his wife, Uzma, and their three children. After his visa expired, Mehmood remained in the country and started a trucking business that provided enough earnings to pur- chase a home in New Jersey and to send funds to his family in Pakistan. In 2000, while living in New Jersey, he and Uzma had their fourth child. In May 2001, Uz- ma’s brother—a United States citizen—submitted an immigration petition for the entire family. On the morning of October 3, 2001, Mehmood was asleep with Uzma and their one-year-old son when FBI and INS agents knocked on his door. The agents searched Mehmood’s home and asked whether he “was involved with a jihad.” Jd. 9 157. Mehmood admitted that he had overstayed his visa. The FBI informed Mehmood that they were not interested in him; they had come to arrest his wife Uzma, whose name the FBI had encountered when investigating Plaintiff Anmer Abbasi, her brother. Mehmood convinced the FBI to arrest him instead of Uzma because their son was still breastfeed- ing. “The Agent told Mehmood that they had no choice but to arrest one of the parents, but that Mehmood faced a minor immigration violation only, and he would be out on bail within days.” /d. 9159. Upon his arrival at the MDC, Mehmood “was dragged from the van by several large correctional officers, who threw him into several walls on his way into the facility.” Id. 1162. “His left hand was broken during this incident” and “|t|he guards threatened to kill him if he asked any questions.” Jd. His experience in the ADMAX SHU 13a tracked that of other 9/11 detainees. For instance, “[w|henever Mehmood was removed from his cell, he was placed in handcuffs, chains, and shackles. Four or more MDC staff members typically escorted him to his desti- nation, frequently inflicting unnecessary pain along the way, for example, by banging him into the wall, dragging him, carrying him, and stepping on his shackles and pushing his face into the wall.” Jd. 9166. Neither the FBI nor INS interviewed Mehmood following his arrest. Mehmood was not released from the ADMAX SHU until February 6, 2002. B. Ahmed Khalifa Khalifa, who had completed five years toward a medi- cal degree at the University of Alexandria in Egypt, came to the United States on a student visa in July 2001. He came to the FBI’s attention after the FBI received a tip that “several Arabs who lived at Khalifa’s address were renting a post-office box, and possibly sending out large quantities of money.” /d. 1195. On September 30, 2001, F BI, INS, and officers from the New York City Po- lice Department came to the apartment Khalifa shared with several Egyptian friends. The officers searched his wallet and apparently became “very interested in a list of phone numbers of friends in Egypt.” Jd. 9196. After searching the apartment, the agents asked Khalifa for his passport and “if he had anything to do with September 11.” Id. 9197. One FBI agent told Khalifa that they were only interested in three of his roommates, but an- other agent said they also needed Khalifa, whom they ar- rested for “working without authorization.” /d. On October 1, 2001, after briefly stopping at a local INS detention facility to complete paperwork, Khalifa and his roommates were transported to the MDC. When he arrived at the MDC, Khalifa “was slammed into the l4a wall, pushed and kicked by MDC officers and placed into a wet cell, with a mattress on the floor.” /d.%201. “[ His] wrists were cut and bruised from his handcuffs, and he was worried about other detainees, whom he heard gasp- ing and moaning through the walls of his cell.” Jd. FBI and INS agents interviewed Khalifa on October 7, 2001. One of the agents apologized to Khalifa after notic- ing the bruises on his wrists. When Khalifa stated that MDC guards were abusing him, the agents “stated it was because he was Muslim.” /d. 1202. In notes from the in- terview, the agents did not question Khalifa’s credibility, and noted no suspicion of ties to terrorism or interest in him in connection with PENTTBOM. Following the interview, MDC guards strip searched Khalifa and “laughed when they made him bend over and spread his buttocks.” /d. 1203. Khalifa complains of the conditions associated with detention in the ADMAX SHU, including arbitrary and abusive strip searches, sleep deprivation, constructive denial of recreational ac- tivities and hygiene items, and deprivation of food and medical attention. By November 5, 2001, the New York FBI field office affirmatively cleared Khalifa of any ties to terrorism and sent his name to F'BI Headquarters for final clearance. Khalifa was not officially cleared until December 19, 2001. He remained confined in the ADMAX SHU until mid-January 2002. C. Purna Raj Bajracharya Bajracharya is neither Muslim nor Arab. He is a Buddhist and native of Nepal who entered the United States on a three-month business visa in 1996. After overstaying his visa, Bajracharya remained in Queens, New York, for five years, working various odd jobs to send money home to his wife and sons in Nepal. Having l5a planned to return home in the fall or winter of 2001, Ba- jracharya used a video camera to capture the streets he had come to know in New York. He came to the FBI's attention on October 25, 2001, when a Queens County District Attorney’s Office employee “observed an ‘|A|rab male’ videotaping outside a Queens| | office building that contained the Queens County District Attorney[’s] Office and a New York FBI office.” Jd. 1230. When ap- proached by investigators from the District Attorney’s Office, Bajracharya tried to explain that he was a tourist. The investigators took him inside the building and inter- rogated him for five hours. FBI and INS agents arrived at some point during the interrogation. Bajracharya subsequently took the agents to his apartment; provided them with his identification documents, which established his country of origin; and admitted to overstaying his vi- sa. Apparently due to the videotaping, Bajracharya was designated as being of “special interest” to the FBI and on October 27, 2001, he was transported to the MDC. /d. 19 233-34. On October 30, 2001, the FBI agent assigned to Bajracharya’s case, along with other law enforcement personnel, interviewed him with the aid of an interpreter. During the interview, “Bajracharya was asked whether he was Muslim or knew any Muslims.” /d. 1235. Bajracharya explained that he was not Muslim and knew no Muslims. The FBI agent’s notes from the interview do not question Bajracharya’s credibility or express any suspicion of ties to terrorism. Two days later, the same agent affirmatively cleared Bajracharya of any link to terrorism. By November 5, 2001, the New York FBI field office completed its investigation and forwarded Bajracharya’s case to FBI Headquarters for final clearance. Documents at FBI Headquarters note that 16a the FBI had no interest in Bajracharya by mid- November 2001. Nonetheless, he was not released from the ADMAX SHU until January 13, 2002. The FBI agent assigned to Bajracharya’s case did not understand why Bajracharya remained in the ADMAX SHU throughout this period; the agent eventually called the Legal Aid Society and advised an attorney that Bajracharya needed legal representation. Bajracharya, who is 53” and weighed about 130 pounds at the time of his arrest, complains of the same conditions common to the other MDC Plaintiffs. For in- stance, he could not sleep due to the light in his cell, and when he was removed from his cell, he would be placed in handcuffs, chains, and shackles and escorted by four or more MDC staff members. Bajracharya became so traumatized by his experience in the ADMAX SHU that he wept constantly. When an attorney requested that the MDC transfer Bajracharya to general population, an MDC “doctor responded that Bajracharya was crying too much, and would cause a riot.” /d. 1241. IV. THE NEW YORK LIsT AND THE “OF INTEREST” DEs- IGNATION As originally articulated by Ashcroft, following 9/11, the DOJ sought to prevent future terrorism by arresting and detaining those people who “have been identified as persons who participate in, or lend support to, terrorist activities.” OIG Report at 12 (internal quotation marks omitted). To that end, Michael Pearson, who was then INS Executive Associate Commissioner for Field Opera- tions, issued a series of Operational Orders, which ad- dressed the responsibilities of INS agents operating with the FBI to investigate leads on illegal aliens. A Septem- ber 22, 2001 order instructed agents to “exercise sound judgment” and to limit arrests to those aliens in whom 17a the F'BI had an “interest” and discouraged arrest in cas- es that were “clearly of no interest in furthering the in- vestigation of the terrorist attacks of September 11th.” Id. at 45 (internal quotation marks omitted). The “of in- terest” designation by an FBI agent had significant im- plications for a detainee. “Of interest” detainees were placed on the INS List, subject to the hold-until-cleared policy, and required FBI clearance of any connection to terrorism before they could be released or removed from the United States. Detainees who were not designated “of interest” to the FBI’s PENTTBOM investigation were not placed on the INS List, did not require clear- ance by the FBI, and could be processed according to normal INS procedures. /d. at 40. The arrest and detention mandate was not uniformly implemented throughout the country. Specifically, the New York FBI investigated all PENTTBOM leads with- out vetting the initial tip and designated as “of interest” “anyone picked up on a PENTTBOM lead ... regardless of the strength of the evidence or the origin of the lead.” /d. at 41; see also Compl. 1943-45. For instance, days af- ter 9/11, New York City police stopped three Middle Eastern men in Manhattan on a traffic violation and found plans to a public school in the car. The next day, their employer confirmed that the men had the plans be- cause they were performing construction work on the school. Nonetheless, the men were arrested and de- tained. See OIG Report at 42. In another instance, a Middle Kastern man was arrested for illegally crossing into the United States from Canada over a week before 9/11. After the attacks, the man was placed on New York’s “‘special interest’ list even though a document in his file, dated September 26, 2001, stated that FBI New 18a York had no knowledge of the basis for his detention.” Id. at 64 (internal quotation marks omitted). In many cases, the New York FBI did not even at- tempt to determine whether the alien was linked to ter- rorism, see id. at 14, 16, 41-42, 47, and it “never labeled a detainee ‘no interest’ until after the clearance process was complete,” id. at 18 (emphasis added). Thus, aliens encountered and arrested pursuant to a PENTTBOM lead in New York were designated “of interest” (or spe- cial interest) and held until the local field office confirmed they had no ties to terrorism. /d. at 14; see also id. at 53." The result was that the MDC Plaintiffs and others similarly situated in New York were held at the MDC ADMAX SHU as if they met the national “of interest” designation. These practices—specifically the absolute lack of triage—appear to have been unique to New York. See id. at 47, 56.” At some point in October 2001, INS representatives to the SIOC Working Group learned that the New York FBI was maintaining a separate list (the “New York List”) of detainees who had not been included in the na- tional INS List. One explanation for maintaining a sepa- rate New York List was that the New York FBI could not determine if the detainees had any connection with terrorist activity. /d. at 54. '' The OIG Report indicates that 491 of the 762 detainees were ar- rested in New York. OIG Report at 21-22. However, the OIG Re- port does not identify how many New York arrests were the result of the New York F'BI’s efforts. " The OIG Report posits that the New York response differed from the rest of the nation, at least in part, as a result of the New York FBI and U.S. Attorney’s Office’s long tradition of independence from their headquarters in Washington, D.C. See OIG Report at 54. 19a After INS Headquarters learned of the separate New York List, small groups of senior officials from the DAG’s Office, the FBI, and the INS convened on at least two oc- casions in October and November 2001 to suggest how to deal with the two separate lists of detainees. In dis- cussing how to address the New York List, “officials at the INS, FBI, and [DOJ] raised concerns about, among other things, whether the aliens |on the New York List] had any nexus to terrorism.” /d. at 53. Nonetheless, this list was merged with the INS List due to the concern that absent further investigation, “the FBI could unwit- tingly permit a dangerous individual to leave the United States.” /d. The decision to merge the lists ensured that some of the individuals on the New York List would re- main detained in the challenged conditions of confine- ment as if there were some suspicion that those individu- als were tied to terrorism, even though no such suspicion existed. V. THE ISSUES ON APPEAL In a January 15, 2013 Memorandum and Order, the district court granted in part and denied in part Defend- ants’ motions to dismiss the Complaint. The district court dismissed all claims against the DOJ Defendants. As to the MDC Defendants, the district court denied their motions to dismiss Plaintiffs’ substantive due pro- cess conditions of confinement claim (Claim 1); equal pro- tection conditions of confinement claim (Claim 2); free exercise claim (Claim 3); unreasonable strip search claim (Claim 6); and conspiracy claim under 42 U.S.C. § 1985(3) (Claim 7). See Turkmen [11,915 F. Supp. 2d at 324. The MDC Defendants appealed, and Plaintiffs cross-appealed the dismissal of the claims against the DOJ Defendants 20a based on a judgment that was entered pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.” DISCUSSION" I. PLEADING STANDARD To satisfy /gbal’s plausibility standard, Plaintiffs must “plead| | factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 556 U.S. at 678. Although plausibil- ity is not a “probability requirement,” Plaintiffs must al- lege facts that permit “more than a sheer possibility that a defendant has acted unlawfully.” /d. (internal quota- tion marks omitted). Factual allegations that are “mere- ly consistent with” unlawful conduct do not create a rea- sonable inference of liability. /d. Moreover, “|t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory state- ments, do not suffice.” Jd. Well-pleaded factual allega- tions, in contrast, should be presumed true, and we must determine “whether they plausibly give rise to an entitle- ment to relief.” /d. at 679. Ultimately, every plausibility determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” /d. With the exception of the Section 1985 conspiracy claim, all of Plaintiffs’ claims allege constitutional viola- tions based on injuries first recognized by the Supreme Court in Bivens, 403 U.S. at 388. During the course of this litigation, the Supreme Court made it clear in /qbal Plaintiffs have not appealed the district court's dismissal of their interference with counsel claims (Claims 4 and 5). ' We review the district court’s determination of Defendants’ Rule 12(b)(6) motions to dismiss de novo. See Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 88 (2d Cir. 2011). 2la that a federal tortfeasor’s Bivens liability cannot be premised on vicarious liability. 556 U.S. at 676. Thus, Plaintiffs must plausibly plead that each Defendant, “through the official’s own individual actions,” violated Plaintiffs’ constitutional rights. /d. In other words, Bivens relief is available only against federal officials who are personally liable for the alleged constitutional tort. /d. at 676-77. /qbal precludes relying on a supervi- sor’s mere knowledge of a subordinate’s mental state (i.e., discriminatory or punitive intent) to infer that the supervisor shared that intent. /d. at 677. Knowing that a subordinate engaged in a rogue discriminatory or puni- tive act is not enough. But that is not to say that where the supervisor condones or ratifies a subordinate’s dis- criminatory or punitive actions the supervisor is free of Bivens’s reach. See id. at 683. If. AVAILABILITY OF A BIVENS REMEDY FOR PLAIN- TIFFS’ CLAIMS Unlike the MDC Defendants, none of the DOJ De- fendants challenge the existence of a Bivens remedy in their briefs to this Court. While the DOJ Defendants did raise this issue below, and are represented by able coun- sel on appeal, they have chosen to not offer that argu- ment now as a further defense of their victory in the dis- trict court. However, as the reader will later discover, our dissenting colleague makes much of this defense, raising it as her main objection to our resolution of the appeal. Given the MDC Defendants’ arguments, as well as the dissent’s decision to press the issue, legitimately noting that a district court’s judgment can be affirmed on any ground supported by the record, Dissenting Op., post at 7 n.4 (citing Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 413 (2d Cir. 2014)), we think it appro- priate to explain our conclusion that a Bivens remedy is 22a available for the MDC Plaintiffs’ punitive conditions of confinement and strip search claims against both the DOJ and the MDC Defendants. In Bivens, 403 U.S. at 388, the Supreme Court “recog- nized for the first time an implied private action for dam- ages against federal officers alleged to have violated a cit- izen’s constitutional rights.” Corr. Servs. Corp. v. Ma- lesko, 534 U.S. 61, 66 (2001). “The purpose of Bivens is to deter individual federal officers from committing consti- tutional violations.” /d. at 70. Because a Bivens claim has judicial parentage, “the Supreme Court has warned that the Bivens remedy is an extraordinary thing that should rarely if ever be applied in new contexts.” Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009) (en banc) (in- ternal quotation marks omitted). Thus, a Bivens remedy is not available for all who allege injury from a federal of- ficer’s violation of their constitutional rights. In Arar, we outlined a two-step process for determin- ing whether a Bivens remedy is available. First, the court must determine whether the underlying claims ex- tend Bivens into a “new context.” /d. at 572. If, and only if, the answer to this first step is yes, the court must then consider (a) “whether there is an alternative remedial scheme available to the plaintiff,” and, even if there is not, (b) “whether special factors counsel hesitation in creating a Bivens remedy.” /d. (internal quotation marks and brackets omitted). As Arar noted, case law provides limited guidance regarding how to determine whether a claim presents a new context for Bivens purposes. Thus, “Iwle construe[d] the word ‘context’ as it is commonly used in law: to reflect a potentially recurring scenario that has similar legal and factual components.” /d. Determining the “context” of a claim can be tricky. The MDC Defendants contend that the context of Plain- 234 tiffs’ claims is the nation’s “response to an unprecedented terrorist attack.” Sherman Br. 45. The DOJ Defendants made a similar argument before the district court in an earlier round of this litigation. See Turkmen I, 2006 WL 1662663, at *30. The MDC Defendants, and the dissent on behalf of the DOJ Defendants, contend that Arar sup- ports this view. But if that were the case, then why did Arar take pains to note that the “context” of Arar’s claims was not the nation’s continuing response to terror- ism, but the acts of federal officials in carrying out Arar’s extraordinary rendition? 585 F.3d at 572. We looked to both the rights injured and the mechanism of the injury to determine the context of Arar’s claims. In rejecting the availability of a Bivens remedy, we focused on the mechanism of his injury: extraordinary rendition—‘“a distinct phenomenon in international law”’—and deter- mined this presented a new context for Bivens-based claims. /d. Only upon concluding that extraordinary rendition presented a new context did we examine the policy concerns and competing remedial measures avail- able to Arar. In our view, setting the context of the Givens claims here as the national response in the wake of 9/11 conflates the two-step process dictated by this Court in Arar. The reasons why Plaintiffs were held at the MDC as if they were suspected of terrorism do not present the “context” of their confinement—just as the reason for Arar’s extraordinary rendition did not present the context of his claim. Without doubt, 9/11 presented unrivaled challenges and severe exigencies—but that does not change the “context” of Plaintiffs’ claims. “{M Jost of the rights that the Plaintiff{s] contend[ | were violated do not vary with surrounding circumstances, such as the right not to be subjected to needlessly harsh conditions of confinement, the right to be free from the use of excessive force, and the right not to be subjected 24a to ethnic or religious discrimination. The strength of our system of constitutional rights derives from the steadfast protection of those rights in both normal and unusual times.” /qbal v. Hasty (Hasty), 490 F.3d 143, 159 (2d Cir. 2007), rev’d on other grounds sub nom. /qgbal, 556 U.S. 662. Thus, we think it plain that the MDC Plaintiffs’ condi- tions of confinement claims are set in the following con- text: federal detainee Plaintiffs, housed in a federal facili- ty, allege that individual federal officers subjected them to punitive conditions. This context takes account of both the rights injured (here, substantive due process and equal protection rights)" and the mechanism of injury (punitive conditions without sufficient cause). The claim—that individual officers violated detainees’ consti- tutional rights by subjecting them to harsh treatment with impermissible intent or without sufficient cause— stands firmly within a familiar Bivens context. Both the Supreme Court and this Circuit have recognized a Bivens remedy for constitutional challenges to conditions of con- finement. In Carlson v. Green, 446 U.S. 14, 17-20 (1980), ” The rights-injured component of Plaintiffs’ claims fall within a ree- ognized Bivens context. This Circuit has presumed the availability of a Bivens remedy for substantive due process claims in several cases. See Arar, 585 F.3d at 598 (Sack, J., dissenting) (citing cases). In addition, the Supreme Court has acknowledged the availability of “a Bivens action to redress a violation of the equal protection com. ponent of the Due Process Clause of the Fifth Amendment.” /qbad, 556 U.S. at 675 (citing Davis v. Passnuin, 442 U.S. 228 (1979)). And while it is true that the Supreme Court has subsequently declined to extend Davis to other employment discrimination claims, such as in Chappell v. Wallace, 462 U.S. 296, 300-04 (1983), the Court's analysis was focused on the special nature of the employer-employee rela- tionship in the military—or, in other words, the mechanism of injury. Here, where the mechanism of injury is also familiar, a Bivens rem- edy is plainly available. 25a the Supreme Court recognized an implied remedy for the plaintiff’s claim alleging an EKighth Amendment violation for prisoner mistreatment. Furthermore, in Malesko, in refusing to extend a Bivens remedy to claims against pri- vate corporations housing federal detainees, the Supreme Court observed in dicta that, while no claim was available against the private corporation, a federal prisoner would have a remedy against federal officials for constitutional claims. 534 U.S. at 72. “If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity.” /d. The Court went on to recognize that the “prisoner may not bring a Bivens claim against the officer’s employer, the United States, or the BOP.” /d. The MDC Plaintiffs’ claims here plainly follow Malesko’s guidance: the claims are raised against the individual officers, both at the DOJ and the MDC, who were responsible for subjecting the Plaintiffs to punitive conditions of confinement. The Second Circuit has also recognized the availability of Bivens relief for federal prisoners housed in federal facilities bringing claims against individual federal offi- cers. In Thomas v. Ashcroft, 470 F.3d 491, 497 (2d Cir. 2006), this Court reversed the district court’s dismissal of the prisoner plaintiff’s Bivens claim for violation of his due process rights against supervisory prison officials. See also Tellier v. Fields, 280 F.3d 69, 80-83 (2d Cir. 2000) (recognizing a Bivens remedy for a claim of depri- vation of procedural due process brought by a federal prisoner against federal prison officials). Furthermore, in Hasty, where we considered claims nearly identical to those at issue in this case, we “did not so much as hint ei- ther that a Bivens remedy was unavailable or that its availability would constitute an unwarranted extension of 26a the Bivens doctrine.” Arar, 585 F.3d at 597 (Sack, J., dissenting) (discussing Hasty, 490 F.3d at 177-78). Our sister circuits have also permitted Bivens claims for unconstitutional conditions of confinement. In Cale v. Johnson, 861 F.2d 943, 947 (6th Cir. 1988), abrogated on other grounds by Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en banc), the Sixth Circuit held that “fed- eral courts have the jurisdictional authority to entertain a Bivens action brought by a federal prisoner, alleging vio- lations of his right to substantive due process.” The Third Circuit has also permitted a federal inmate to bring a civil rights action against prison officials. See Bistrian v. Levi, 696 F.3d 352, 372-75 (3d Cir. 2012) (as- suming availability of a Bivens remedy for plaintiff’s Fifth Amendment substantive due process and other constitutional claims challenging his conditions of con- finement). Notwithstanding the persuasive precedent suggesting the availability of a Bivens remedy for the MDC Plain- tiffs’ conditions of confinement claims, the MDC Defend- ants, and our dissenting colleague, argue that the MDC Plaintiffs’ claims present a new Bivens context because the Plaintiffs are illegal aliens. But because the MDC Plaintiffs’ right to be free from punitive conditions of con- finement is coextensive with that of a citizen, their unlaw- ful presence in the United States at the time of the chal- lenged confinement does not place their standard mis- treatment claim into a new context. Indeed, the Fifth Circuit has recognized a Bivens claim raised by a Mexi- can national for violations of her Fourth and Fifth Amendment rights to be free from false imprisonment and the use of excessive force by law enforcement per- sonnel. See Martinez-Agquero v. Gonzalez, 459 F.3d 618, 625 (5th Cir. 2006). The Ninth Circuit has also recog- 27a nized a Bivens claim for due process violations that oc- curred during an illegal alien plaintiff’s detention. See Papa v. United States, 281 F.3d 1004, 1010-11 (9th Cir. 2002). Thus, we conclude that a Bivens remedy is avail- able for the Plaintiffs’ substantive due process and equal protection conditions of confinement claims. Our understanding of Bivens and this Court’s decision in Arar do not however suggest the availability of a Bivens remedy for the Plaintiffs’ free exercise claim. That claim—that Defendants deliberately interfered with Plaintiffs’ religious practices by: (1) denying them timely access to copies of the Koran; (2) denying them Halal food; and (3) failing to stop MDC staff from interfering with Plaintiffs’ prayers—does not fall within a familiar Bivens context. Here, it is the right injured—Plaintiffs’ free exercise right—and not the mechanism of injury that places Plaintiffs’ claims in a new Bivens context. In- deed, the Supreme Court has “not found an implied dam- ages remedy under the Free Exercise Clause” and has “declined to extend Bivens to a claim sounding in the First Amendment.” /qbal, 556 U.S. at 675 (citing Bush v. Lucas, 462 U.S. 367 (1983)). Accordingly, we agree with the MDC Defendants that Plaintiffs’ free exercise claim should have been dismissed. But the MDC Plaintiffs’ claim that they were subject- ed to unlawful strip searches falls within an established Bivens context: federal detainee plaintiffs, housed in a We note that the Ninth Circuit has declined to provide illegal al- iens with an implied Bivens remedy for unlawful detention during deportation proceedings. Mirmehdi v. United States, 689 F.3d 975, 981-83 (9th Cir. 2012). Of course, that decision is plainly inapposite here where the MDC Plaintiffs do not challenge the fact that they were detained, but rather the conditions in which they were de- tained. 28a federal facility, allege that individual federal officers sub- jected them to unreasonable searches in violation of the Fourth Amendment. The MDC Defendants fail to per- suasively explain why recognizing the MDC Plaintiffs’ unlawful strip search claim would extend Bivens to a new context. Indeed, the right violated certainly falls within a recognized Bivens context: the Fourth Amendment is at the core of the Bivens jurisprudence, as Bivens itself concerned a Fourth Amendment claim. In Bivens, the plaintiff brought a Fourth Amendment claim for the de- fendants’ use of unreasonable force without probable cause, resulting in the plaintiff’s unlawful arrest. 403 U.S. at 389-90; see also Groh v. Ramirez, 540 U.S. 551, 555 (2004) (recognizing the availability of a Bivens reme- dy for a Fourth Amendment claim of an unreasonable search, as a result of a facially invalid warrant). This Circuit has also permitted Bivens relief for Fourth Amendment claims involving unreasonable searches. See, e.g., Castro v. United States, 34 F.3d 106, 107 (2d Cir. 1994). And the mechanism of the violation—here, an unreasonable search performed by a prison official—has also been recognized by this Circuit. Indeed, in Arar, we stated that “lijn the small number of contexts in which courts have implied a Bivens remedy, it has often been easy to identify both the line between constitutional and unconstitutional conduct, and the alternative course which officers should have pursued .... [T]he immigra- tion officer who subjected an alien to multiple strip searches without cause should have left the alien in his clothes.” 585 F.3d at 580; see also Hasty, 490 F.3d at 170-73 (assuming the existence of a Bivens remedy to challenge strip searches under the Fourth Amendment). Accordingly, we conclude that a Bivens remedy is available for Plaintiffs’ conditions of confinement claims, 29a under both the Due Process and Equal Protection Claus- es of the Fifth Amendment, and Fourth Amendment un- reasonable and punitive strip searches claim.'’ However, Plaintiffs’ free exercise claim would require extending Bivens to a new context, a move we decline to make ab- sent guidance from the Supreme Court. Ill. CLAIM 1: SUBSTANTIVE DUE PROCESS CONDITIONS OF CONFINEMENT The MDC Plaintiffs allege that the harsh conditions of confinement in the MDC violated their Fifth Amendment substantive due process rights and that all Defendants are liable for this harm.” Plaintiffs present distinct theo- ries of liability as to the DOJ and MDC Defendants. A. Applicable Legal Standard The Fifth Amendment’s Due Process Clause forbids subjecting pretrial detainees to punitive restrictions or conditions. See Bell v. Wolfish (Wolfish), 441 U.S. 520, 535 & n.16 (1979). Plaintiffs must plausibly plead that Defendants, (1) with punitive intent, (2) personally en- gaged in conduct that caused the challenged conditions of '’ Because we conclude that Plaintiffs’ substantive due process, equal protection, and unreasonable punitive strip searches claims do not extend Bivens to a new context, we need not address “whether there is an alternative remedial scheme available to the plaintiff” or “whether special factors counsel hesitation in creating a Bivens rem- edy.” Arar, 585 F.3d at 572 (internal quotation marks and brackets omitted). Turkmen and Sachdeva, the Passaic Plaintiffs, do not bring a sub- stantive due process conditions of confinement claim or unreasonable strip search claim (Claims 1 and 6). The parties have not argued for a different standard in this appeal. Accordingly, we do not address whether the rights of civil immigra- tion detainees should be governed by a standard that is even more protective than the standard that applies to pretrial criminal detain- ees. 30a confinement. See id. at 538; see also /qbal, 556 U.S. at 676-77. Absent “an expressed intent to punish,” Wolfish, 441 U.S. at 538, we may only infer that Defendants acted with punitive intent if the challenged conditions were “not reasonably related to a legitimate goal—if [they were| arbitrary or purposeless,” id. at 539. B. The DOJ Defendants While the DOJ Defendants do not raise a no-Bivens- claim defense, they do forcefully contest liability here with powerful post-/gbal assertions that “the former At- torney General and FBI Director did not themselves re- quire or specify any of the particular conditions set forth in the complaint. And they cannot be held liable on what amounts to a theory of respondeat superior for the ac- tions of others who may have imposed those conditions.” Ashcroft & Mueller Br. 10. They contend that because the former Attorney General’s initial detention order was constitutional, having been approved by the Supreme Court in /gbal, the DOJ Defendants were “entitled to presume that the facially constitutional policy would in turn be implemented lawfully ....” Jd. at 9. We agree ... toa point. The MDC Plaintiffs concede that the DOJ Defendants did not create the particular conditions in question. See Turkmen I11, 915 F. Supp. 2d at 326 n.4; see also OIG Report at 19, 112-13 (reporting that, at least initially, BOP officials determined the conditions under which de- tainees would be held, without direction from the FBI or elsewhere). The MDC Plaintiffs similarly fail to plead that Ashcroft’s initial arrest and detention mandate re- quired subordinates to apply excessively restrictive con- ditions to civil detainees against whom the government lacked individualized suspicion of terrorism. Given the mandate’s facial validity, the DOJ Defendants had a right sla to presume that subordinates would carry it out in a con- stitutional manner. See Al./undi v. Estate of Rockefel- ler, 885 F.2d 1060, 1065-66 (2d Cir. 1989). But that is not the end of the matter. The MDC Plaintiffs plausibly plead that the DOJ De- fendants were aware that illegal aliens were being de- tained in punitive conditions of confinement in New York and further knew that there was no suggestion that those detainees were tied to terrorism except for the fact that they were, or were perceived to be, Arab or Muslim.” The MDC Plaintiffs further allege that while knowing these facts, the DOJ Defendants were responsible for a decision to merge the New York List with the national INS List, which contained the names of detainees whose detention was dependent not only on their illegal immi- grant status and their perceived Arab or Muslim affilia- tion, but also a suspicion that they were connected to ter- rorist activities. The merger ensured that the MDC ” The dissent counters that “[t/his is not apparent in the record,” cit- ing Plaintiff Bajracharya’s videotaping of a building in Queens as ev- idence of that Plaintiff’s possible tie to terrorism. Dissenting Op., post at 43 n.28. The dissent makes no mention, of course, of Plaintiff Khalifa, who was told that the FBI was only interested in his room- mates, but who was arrested and then detained in the ADMAX SHU anyway, Compl. 1197; or of Plaintiff Mehmood, who was arrested and detained in the ADMAX SIIU in place of his wife, in whom the FBI had apparently expressed interest, but who was still breastfeed- ing their son, id. 1159. The dissent further claims that detainees were not sent to the ADMAX SHU based on their perceived race or religion, but—as the OIG Report states—based on whether they were designated of “high interest” to the PENTTBOM investigation. Dissenting Op., post at 44 n.28 (citing OIG Report at 18, 111). But, as the dissent concedes, id., Plaintiffs’ well-pleaded Complaint spe- cifically contradicts this point: the MDC Plaintiffs were detained in the ADMAX SHU “even though they had not been classified ‘high interest,’” Compl. 9 4. 32a Plaintiffs would continue to be confined in punitive condi- tions. This is sufficient to plead a Fifth Amendment sub- stantive due process violation.*' Given the lack of indi- vidualized suspicion, the decision to merge the lists was not “reasonably related to a legitimate goal.” See Wolf- ish, 441 U.S. at 539. The only reason why the MDC Plaintiffs were held as if they were suspected of terror- ism was because they were, or appeared to be, Arab or Muslim. We conclude that this plausibly pleads punitive intent. /d. 1. Punitive Conditions of Confinement Contrary to the district court’s conclusion that Plain- tiffs failed to “allege that the DOJ [DJefendants were even aware of [the] conditions,” Turkmen JI], 915 F. Supp. 2d at 340, the Complaint and the OIG Report each contain allegations of the DOJ Defendants’ knowledge of the challenged conditions. Plaintiffs allege, inter alia, that Mueller ran the 9/11 investigation out of FBI Head- quarters; and that “Ashcroft, Mueller[,| and Ziglar re- ceived detailed daily reports of the arrests and deten- tions,” Compl. 147; see also id. 19 63-65. The OIG Report makes plain the plausibility of Plain- tiffs’ allegations. The “| DOJ] was aware of the BOP’s de- cision to house the September 11 detainees in “ We acknowledge, as the dissent points out, that the MDC Plaintiffs did not advance the “lists-merger theory” before this Court or the district court. Dissenting Op., post at 43 n.28. Rather, they struc- tured the Complaint to challenge Ashcroft’s arrest and detention mandate as initially formulated and generally applied. In examining the Complaint’s sufficiency, we have been clear that the pleadings are inadequate to challenge the validity of the policy ab initio, but do state a claim with regard to the merger decision, an event that Plain- tiffs explicitly reference in the Complaint. See Compl. 1 47; Pls.’ Br. 38. Sufficiency analysis requires a careful parsing of the Complaint and that is all that has occurred here. 33a high-security sections in various BOP facilities.”. OIG Report at 19. The Deputy Chief of Staff to Ashcroft told the OIG that an allegation of mistreatment was called to the Attorney General’s attention. /d. at 20. And BOP Director Kathy Hawk Sawyer stated that in the weeks following 9/11, the Deputy Attorney General’s Chief of Staff and the Principal Associate Deputy Attorney Gen- eral “called her . .. with concerns about detainees’ ability to communicate both with those outside the facility and with other inmates,” id. at 112, which she said confirmed for her that the decision to house detainees in the restric- tive conditions of the ADMAX SHU was appropriate, id. at 112-113. This supports the reasonable inference that not only was Ashcroft’s office aware of some of the condi- tions imposed, but affirmatively supported them. See al- so id. at 113 (DOJ officials told Sawyer to “take |BOP| policies to their legal limit”). Furthermore, the OIG Report also makes clear that conditions in the ADMAX SHU began to receive media attention soon after deten- tions began, see id. at 2, 5;” thus, it seems implausible “The dissent attempts to minimize the force of these comments, claiming that communications about a condition of confinement that was lifted before the merger decision cannot support an inference as to what the DOJ Defendants knew about the conditions in the AD- MAX SHU. Dissenting Op., post at 56-57. Simply put, we disagree. The fact remains that a condition of confinement, less severe and abusive than the conditions at issue here, garnered the attention of senior officials; it stands to reason that conditions that kept detain- ees in their cells for twenty-three hours a day, denied them sleep by bright lights, and involved excessive strip searches and physical abuse, would have come to the DOJ Defendants’ attention. ” See, e.y., Neil A. Lewis, A Nation Challenged: The Detainees; De- tentions After Attacks Pass 1,000, U.S. Says, N.Y. TIMES, Oct. 30, 2001, available at http:/Awww.nytimes.com/2001/10/30/us/a-nation challenged-the-detainees-detentionsafter-attacks-pass-1000-us-says 34a that the public’s concerns did not reach the DOJ Defend- ants’ desks. Of course, we cannot say for certain that daily reports given to Ashcroft and Mueller detailed the conditions at the ADMAX SHU or that the daily meetings of the SIOC Working Group (containing representatives from each of the DOJ Defendants’ offices) discussed those conditions. But on review of a motion to dismiss, Plaintiffs need not prove their allegations; they must plausibly plead them. At a minimum, a steady stream of information regarding the challenged conditions flowed between the BOP and senior DOJ officials. Given the MDC Plaintiffs’ allega- tions, the media coverage of conditions at the MDC, and the DOJ Defendants’ announced central roles in PENTTBOM, it seems to us plausible that information concerning conditions at the MDC, which held eighty- four of the 9/11 detainees, reached the DOJ Defendants.”' -html (citing “common news reports of abuse involv|ing| mistreat- ment of prisoners of Middle Eastern background at jails”). “ Furthermore, the OIG reports were issued pursuant to the Office of the Inspector General’s responsibilities under the USA PATRIOT Act, which was enacted on October 26, 2001. See OIG Report at 3 n.6. The PATRIOT Act, Section 1001, reads: “The Inspector Gen- eral of the Department of Justice shall designate one official who shall—{1) review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the De- partment of Justice.” PATRIOT Act, Pub. L. No. 107-56, § 1001, 115 Stat. 272 (2001). “On October 30, 2001, the OIG reviewed a newspa- per article in which a September 11 detainee alleged he was physical- ly abused when he arrived at the MDC on October 4, 2001. Based on the allegations in the article, the OIG’s Investigations Division initi- ated an investigation into the matter.” OIG Report at 144. It seems to us most plausible that if the Ol1G—who is “under the authority, di- rection, and control of the Attorney General with respect to audits or investigations,” 5 U.S.C. App. 3 §8E(a)(1)—was aware of the chal- lenged conditions at the MDC, the DOJ Defendants were as well. 35a 2. Lack of Individualized Suspicion The MDC Plaintiffs also plausibly plead that the DO.) (Defendants were aware that the FBI had not developed any connection between some of the detainees and ter- rorist activities. The Complaint and OIG Report both make clear that the New York FBI arrested all “out-of-status” aliens encountered—even coincidental- ly—in the course of investigating a PENTTBOM lead. OIG Report at 41-42, 69-70. These arrestees were “deemed ‘of interest’ for purposes of the ‘hold until cleared’ policy, regardless of the strength of the evidence or the origin of the lead.” /d. at 41. Those deemed of “high interest” were sent to the MDC’s ADMAX SHU, id. at 111, but “there was little consistency or precision to the process that resulted in detainees being labeled ‘high interest,’” id. at 158.” Even if the DOJ Defendants were not initially aware of this practice, the Complaint and OIG reports support the reasonable inference that Ashcroft and Mueller learned of it within weeks of 9/11. The Complaint clearly alleges that the DOJ Defendants agreed that individuals for whom the FBI could only articulate an immigration law violation as a reason for detention—and for whom the FBI had not developed any reliable tie to terrorism— would continue to be treated as if the FBI had reason to believe the detainees had ties to terrorist activity. Compl. 167. Plaintiffs point to the detailed daily reports ” Even some detainees who were not labeled “high interest” were nonetheless sent to the MDC’s ADMAX SHU. For example, “Ab- basi, Bajracharya, Mehmood, and Khalifaf | were placed in the AD- MAX SHU even though they had not been classified ‘high interest’ and despite the absence of any information indicating they were dangerous or involved in terrorism, or any other legitimate reason for such treatment.” Compl. 94. 36a that the DOJ Defendants received regarding arrests and detentions and allege that the DOJ Defendants “were aware that the FBI had no information tying Plaintiffs and class members to terrorism prior to treating them as ‘of interest’ to the PENTTBOM investigation.” /d. 147. Indeed, they claim that Ashcroft, in particular, “insisted on regular, detailed reporting on arrests”; they allege that he received a daily “Attorney General’s Report” on persons arrested. /d. 163. They further allege that it was Ziglar who was ultimately responsible for providing much of this information—which he gleaned from his twice daily briefings with his staff regarding the 9/11 de- tentions—to Ashcroft, indicating that he too was aware of the lack of individualized suspicion. /d. 164. Once again, the OIG reports also support the MDC Plaintiffs’ allegation that the DOJ Defendants became aware of the lack of individualized suspicion for some de- tainees held in the challenged conditions of confinement. The OIG Report states that “[a] variety of INS, FBI, and [DOJ] officials who worked on the| | September 11 de- tainee cases told the OIG that it soon became evident that many of the people arrested during’ the PENTTBOM investigation might not have a nexus to terrorism.” OIG Report at 45. Other DOJ officials also stated that it “soon became clear” that only some of the detainees were of “genuine investigative interest”—as opposed to aliens identified by the FBI as “of interest” for whom the FBI had no suspicion of a connection to the attacks or terrorism in general. /d. at 47. The OIG Report supports the reasonable inference that this information, known by other DOJ officials, came to the attention of the DOJ Defendants. In particular, the OIG Report specifies that Ashcroft and Mueller were involved in a “‘continuous meeting’ for the first few 37a months” after 9/11, at which “the issue of holding aliens until they were cleared was discussed.” /d. at 39-40. Furthermore, the OLG Report makes clear that the SIOC Working Group, containing representatives from the of- fices of each of the DOJ Defendants, was aware of the lack of evidence tying detainees to terrorism. /d. at 53- 57. As we have already noted, the OIG Report details how at some point in October 2001, the SIOC Working Group learned about the New York List and that “offi- cials at the INS, FBI, and [DOJ] raised concerns about, among other things, whether the aliens had any nexus to terrorism.” /d. at 53. Clearly this created a major prob- lem for the DOJ. The existence of the New York List suddenly presented the possibility of more than doubling the number of detainees subject to the hold-until-cleared policy.” It seems quite plausible that DOJ officials would confer with the Attorney General and the Director of the FBI (it was, after all, his agents who were arresting out-of-status Arab and Muslim aliens and holding them as if they were “of interest” without any suspicion of ter- rorist connections) about the problem of the New York List and the hundreds of detainees picked up in contra- vention of Ashcroft’s stated policy. Indeed, it seems to us implausible they did not. Finally, the OIG Report once again makes clear that media reports regarding allega- tions of mistreatment of detainees alleged that detainees remained in detention even though they had no involve- ment in terrorism. /d. at 2, 5. 3. The Decision to Merge the Lists Plaintiffs plausibly plead that, despite the DOJ De- fendants’ knowledge of the conditions at the ADMAX ” In October and November of 2001, the New York List contained approximately 300 detainees while the INS List for the rest of the nation contained only 200 detainees. OLG Report at 54. 38a SHU and the lack of any form of verified suspicion for a large number of those detainees on the New York List, Ashcroft approved, or at least endorsed, a decision to merge the New York List. The MDC Plaintiffs contend that he did so notwithstanding vocal opposition from var- ious internal sources. The Complaint clearly alleges that “lalgainst significant internal criticism from INS agents and other federal employees involved in the sweeps, Ash- croft ordered that, despite a complete lack of any infor- mation or a statement of FBI interest, all such Plaintiffs and class members [on the New York List] be detained until cleared and otherwise treated as ‘of interest.’” Compl. 147. By taking this action, Ashcroft ensured that some of the individuals on the New York List would be placed in, or remain detained in, the challenged condi- tions of confinement. Our dissenting colleague levels a concern as to the im- port of the merger of the lists and counters that nothing in the OIG reports confirms Ashcroft’s personal knowledge of the correlation between the merger of the lists and the lack of individualized suspicion as to the MDC Plaintiffs. The dissent contends that, because Plaintiffs’ allegations are not based on personal know- ledge, there is no factual basis in the record for them. Dissenting Op., post at 45. True enough that Ashcroft did not acknowledge that he was aware of the merger of the lists and its implication for the MDC Plaintiffs, nor did he take responsibility for it. But then again a review of the OIG Report gives no indication that anybody asked him. The absence of an inquiry to the former Attorney General is not a criticism of the Office of the Inspector General's methods, but a simple recognition of a fact that points out a key difference between our view of the OIG 39a reports and that of the dissent. For us, the OIG reports provide context for the allegations of the Complaint. See supra note 6. However, it would be a mistake to think of the OIG reports as a repository of all relevant facts of that troubled time; but that is exactly what the dissent seems inclined to do. The dissent measures plausibility by the absence or presence of fact-findings in the OIG reports. Thus, for the dissent, the fact that the Attorney yeneral may not have been questioned is confirmation that he knew nothing. The reports make no such asser- tion. It may be that following discovery it will be clear that Ashcroft was not responsible for the merger decision (nor was Mueller or Ziglar), but that is not the question at the pleading stage. The question is whether the MDC Plaintiffs plausibly plead that Ashcroft was responsible. Given the importance of the merger and its implications for how his lawful original order was being carried out, we think the MDC Plaintiffs plausibly allege that he was. Indeed, the OIG Report supports the MDC Plaintiffs’ allegation that Ashcroft was responsible for the merger decision. An incident at one of the New York List meet- ings provides additional context that supports that alle- gation. At the November 2, 2001 meeting, the group dis- cussed the necessity of CIA checks, often a prerequisite to a 9/11 detainee’s release from detention. OIG Report at 55. In response, Stuart Levey, the Associate Deputy Attorney General responsible for oversight of immigra- tion issues, stated that he had to “check” before com- municating a decision on whether “any detainees could be released without the CIA check.” /d. at 56. This re- sponse could reasonably indicate (a) a lack of authority to respond to the question, or (b) that Levey wanted to con- sider other views before making the decision. Because 40a either is plausible, it is irrelevant that only inference (a) supports the conclusion that Levey could not answer the question on his own and had to take it to more senior offi- cials.” Furthermore, in late November 2001, when the INS Chief of Staff approached Levey about the CIA check policy, Levey said that he “did not feel comfortable mak- ing the decision about [the] request to change the CIA check policy without additional input.” /d. at 62. It seems to us that if Levey was not comfortable changing the CIA check policy without input from more senior offi- cials, he certainly would not have been comfortable mak- ing the decision on his own to double the number of de- tainees subject to that policy in the first instance.” The dissent argues that the OIG Report forecloses the plausibility of the allegation that Levey brought the list- “ The OIG Report states that Levey specifically consulted David Laufman, the Deputy Attorney General's Chief of Staff. OIG Report at 62. The dissent takes this as definitive proof that Ashcroft was not consulted on this, or the merger, decision. Dissenting Op., post at 47-49. The dissent mischaracterizes our reference to the CIA checks decision. We do not contend that Levey consulted Ashcroft about that decision, nor do we need to. In our view, the fact that Levey spoke to Laufman about that decision is not the end of the matter; indeed, the only relevance of the CIA checks decision, period, is that Levey was not capable of making it on his own, suggesting that he also would not be able to make the list-merger decision on his own. * Indeed, Ziglar told the OIG that he contacted Ashcroft’s office on November 7, 2001, to discuss concerns about the process of clearing names from the INS Custody List, especially the impact that merg- ing the lists would have on that process and said that “based on these and other contacts with senior Department officials, he believed the Department was fully aware” of the INS’s concerns. OIG Report at 66-67. This also suggests that Levey had communicated those con- cerns to Ashcroft, who nonetheless made the decision to merge the lists. 4la merger decision to Ashcroft because “Levey made the lists-merger decision ‘[a]t the conclusion of the |Novem- ber 2] meeting’ at which the subject was first raised to him.” Dissenting Op., post at 49 (quoting OIG Report at 56). But the OIG Report does not indicate that the mer- ger issue was first raised to Levey at the November 2 meeting. Rather, the OIG Report makes clear that the issue of the New York List was discovered in October 2001,” and that the decision to merge the lists was com- municated at the November 2 meeting. Thus, surely it is plausible that Levey consulted with more senior officials, including Ashcroft, prior to that meeting.” Of course, discovery may show that Levey was solely responsible for the decision. But, again, the question is whether Plaintiffs’ allegations support the inference that the deci- sion was Ashcroft’s; they do. The MDC Plaintiffs’ allegations against Mueller and Ziglar are also sufficient. The Complaint alleges, inter ” While the dissent’s observation that Levey did not attend the Oc- tober 22, 2001 meeting during which the “problems presented by the New York List” were discussed is accurate, it is also irrelevant. See Dissenting Op., post at 49-50 (quoting OIG Report at 55). We do not contend that Levey learned about the New York List at the October 22 meeting, but simply that he learned about it before the November 2 meeting, giving him time to consult with more senior officials, in- cluding Ashcroft, before communicating a decision at that November meeting. Indeed, one would think that Levey would not attend the November 2 meeting without knowing its agenda. ” The dissent challenges the sufficiency of Plaintiffs’ allegations and our reading of them as “wholly speculative.” Dissenting Op., post at 48. Of course, Plaintiffs have no way of knowing what Levey and Ashcroft discussed; nor do we. /gbal does not require as much, but rather “sufficient factual matter, accepted as true” to allow the court to draw the reasonable inference that Ashcroft was ultimately re- sponsible for the decision. 556 U.S. at 678. We believe that Plaintiffs have met this burden. 42a alia, that Ashcroft made the decision to merge the lists in spite of the lack of individualized suspicion linking the MDC Plaintiffs to terrorism and that “Mueller and Ziglar were fully informed of this decision, and complied with it.” Compl. 147; see also id. 1955-57, 67. Mueller and Ziglar are not exculpated from this claim merely because Plaintiffs allege that they complied with, as opposed to ordered, the list merger. Plaintiffs plausibly plead that both were aware that the separate list contained detain- ees for whom the FBI had asserted no interest and that subjecting them to the challenged conditions would be fa- cially unreasonable. Even if an official is not the source of a challenged policy, that official can be held personally liable for constitutional violations stemming from the ex- ecution of his superior’s orders if those orders are facially invalid or clearly illegal. See, e.g., Varrone v. Bilotti, 123 F.3d 75, 81 (2d Cir. 1997) (granting defendants qualified immunity where there was “no claim that the order was facially invalid or obviously illegal”). In this instance, Plaintiffs plausibly allege that Ashcroft’s decision was fa- cially invalid; it would be unreasonable for Mueller and Ziglar to conclude that holding ordinary civil detainees under the most restrictive conditions of confinement available was lawful. 4. Punitive Intent The MDC Plaintiffs must show not only that the DOJ Defendants knew of and approved continued use of the ADMAX SHU, but also that they did so with punitive in- tent—that they endorsed the use of those conditions with an intent to punish the MDC Plaintiffs. Federal courts have long recognized that punitive intent is not often ad- mitted. The Supreme Court has noted that it can be in- ferred if the conditions of confinement are “not reasona- bly related to a legitimate goal.” Wolfish, 441 U.S. at 43a 539. If the conditions under which one is held have no reasonable connection to a legitimate goal of the state, then one logical assumption is that they are imposed for no other purpose than to punish. See id. The DOJ Defendants argue that even if they knew of the plight of the MDC Plaintiffs, the decision to continue their confinement at the MDC under exceptionally harsh conditions was motivated by national security concerns— a legitimate worry during the days following the 9/11 at- tacks—and not some animus directed at the MDC Plain- tiffs. They seem to imply that once “national security” concerns become a reason for holding someone, there is no need to show a connection between those concerns and the captive other than that the captive shares common traits of the terrorist: illegal immigrant status and a per- ceived Arab or Muslim affiliation. Indeed, our dissenting colleague asserts that because the MDC Plaintiffs were, or appeared to be, members of the group—Arab or Mus- lim males—that was targeted for recruitment by al Qaeda that they could be held in the ADMAX SHU with- out any reasonable suspicion of terrorist activity. Dis- senting Op., post at 64-65, 76-77. Under this view, the MDC Plaintiffs were not held with punitive intent be- cause there was no way to know that they were not in- volved in terrorist activities. Simply being in the United States illegally and being, or appearing to be, Arab or Muslim was enough to justify detention in the most re- strictive conditions of confinement available. Indeed, Levey admitted that the decision to merge the lists, en- suring that some of the 9/11 detainees would be subject to the challenged harsh conditions of confinement, was made because he “wanted to err on the side of caution so that a terrorist would not be released by mistake.” OIG Report at 56. 44a This argument rests on the assumption that if an indi- vidual was an out-of-status Arab or Muslim, and someone called the FBI for even the most absurd reason, that in- dividual was considered a possible threat to national se- curity. It presumes, in essence, that all out-of-status Ar- abs or Muslims were potential terrorists until proven otherwise. It is built on a perception of a race and faith that has no basis in fact. There was no legitimate gov- ernmental purpose in holding someone in the most re- strictive conditions of confinement available simply be- cause he happened to be—or, worse yet, appeared to be—aArab or Muslim. To be clear, it is “no surprise”—nor is it constitutional- ly problematic—that the enforcement of our immigration laws in the wake of 9/11 had a “disparate, incidental im- pact on Arab Muslims.” /qbal, 556 U.S. at 682. And we do not contend that Supreme Court, or our own, prece- dent requires individualized suspicion to subject detain- ees to generally restrictive conditions of confinement; re- striction is an incident of detention. Rather, we simply acknowledge that “if a restriction or condition is not rea- sonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the pur- pose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua de- tainees.” Wolfish, 441 U.S. at 539. We believe, then, that the challenged conditions—keeping detainees in their cells for twenty-three hours a day, constructively denying them recreation and exposing them to the elements, strip searching them whenever they were removed from or re- turned to their cells, denying them sleep by bright lights—were not reasonably related to a legitimate goal, but rather were punitive and unconstitutional. 45a While national security concerns could justify detain- ing those individuals with suspected ties to terrorism in these challenged conditions for the litany of reasons ar- ticulated by the dissent, see Dissenting Op., post at 67-68, those concerns do not justify detaining individuals solely on the basis of an immigration violation and their per- ceived race or religion in those same conditions. Individ- ualized suspicion is required here because, absent some indication that the detainees had a tie to terrorism, the restrictions or conditions of the ADMAX SHU were “ar- bitrary or purposeless.” Wolfish, 441 U.S. at 539." Indeed, in Wolfish, the Supreme Court acknowledged that “loading a detainee with chains and shackles and throwing him in a dungeon may ensure his [detention] and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be ac- complished in so many alternative and less harsh meth- ods, would not support a conclusion that the purpose for which they were imposed was to punish.” /d. at 539 n.20. That is the situation before us. Clearly detention condi- tions less restrictive than the ADMAX SHU were feasi- wee OS ----- " The dissent cites several cases that it claims demonstrate that in- dividualized suspicion is not required for imposing restrictive condi- tions of confinement. Dissenting Op., post at 62-63. We do not disa- gree: individualized suspicion is not required to impose conditions that are reasonably related to a legitimate governmental objective. Wolfish, 441 U.S. at 539. Thus, in each of the cases cited by the dis- sent, rather than announce that individualized suspicion was not re- quired, the Supreme Court determined that the restrictions at issue in each of those cases were related to the legitimate goal of prison security and, therefore, were not punitive. Thus, the cases cited by the dissent do not change our conclusion here, where the challenged conditions—the most restrictive available and imposed on detainees qiut detainees—are not reasonably related to either the goal of pris- on security, or national security. 46a ble for the MDC Plaintiffs, given that the detainees held in the Passaic facility “were not held in isolation or oth- erwise placed in restrictive confinement.” Compl. 166. Placing the MDC Plaintiffs in chains and shackles and throwing them in the ADMAX SHU ensured that they posed no threat. in the aftermath of 9/11; but we can reach no conclusion other than that the DOJ Defendants’ deci- sion to do so was made with punitive intent. In view of the foregoing, we hold that the MDC Plain- tiffs fail to plausibly plead a substantive due process claim against the DOJ Defendants coextensive with the entire post-9/11 investigation and reaching back to the time of Plaintiffs’ initial detention. Nonetheless, Plain- tiffs’ well-pleaded allegations, in conjunction with the OIG Report’s documentation of events such as the New York List controversy, render plausible the claim that by the beginning of November 2001, Ashcroft knew of, and approved, the MDC Plaintiffs’ confinement under severe conditions, and that Mueller and Ziglar complied with Ashcroft’s order notwithstanding their knowledge that the government had no evidence linking the MDC Plain- tiffs to terrorist activity. Discovery may ultimately prove otherwise, but for present purposes, the MDC Plaintiffs’ substantive due process claim—with the exception of the temporal limitation noted above—may proceed against the DOJ Defendants. 5. Qualified Immunity A defendant is entitled to qualified immunity if he can establish (1) that the complaint fails to plausibly plead that the defendant personally violated the plaintiff’s con- stitutional rights, or (2) that the right was not clearly es- tablished at the time in question. See Pearson v. Calla- han, 555 U.S. 228, 232 (2009); Varrone, 123 F.3d at 78 (noting that the qualified immunity inquiry turns, gener- AZ7a ally, on the objective legal reasonableness of a defend- ant’s actions). For the reasons stated above, the MDC Plaintiffs plausibly plead that the DOJ Defendants violated their substantive due process rights. With regard to the sec- ond prong of this inquiry, the law regarding the punish- ment of pretrial detainees was clearly established in the fall of 2001. As discussed, Wolfish made clear that a par- ticular condition or restriction of pretrial detention not reasonably related to a legitimate governmental objective is punishment in violation of the constitutional rights of detainees. See 441 U.S. at 535-39 & n.20. And in Hasty, this Court denied qualified immunity with respect to a materially identical conditions claim against Hasty. 490 F.3d at 168-69. We explained that “|t|he right of pretrial detainees to be free from punitive restraints was clearly established at the time of the events in question, and no reasonable officer could have thought that he could pun- ish a pretrial detainee by subjecting him to the practices and conditions alleged by the Plaintiff.” /d. at 169. Hasty further rejected the argument that the post- 9/11 context warranted qualified immunity even if it was otherwise unavailable. /d. at 159-60, 169. Recognizing the “gravity of the situation” that 9/11 presented, we ex- plained that qualified immunity remained inappropriate because a pretrial detainee’s right to be free from pun- ishment does not vary with the surrounding circumstanc- es. Jd. at 159. Nothing has undermined the logic or precedential authority of our qualified immunity holding in Hasty. We therefore conclude that the DOJ Defend- ants are not entitled to qualified immunity on the MDC Plaintiffs’ conditions of confinement claim. 48a C. The MDC Defendants In his opinion below, Judge Gleeson divided the MDC Plaintiffs’ conditions of confinement claim against the MDC Defendants into two categories: “official condi- tions” allegations and “unofficial abuse” allegations. The “official conditions” allegations concern express confine- ment policies that the MDC Defendants approved and implemented; the “unofficial abuse” allegations concern the physical and verbal abuse that the MDC Defendants employed or permitted their subordinates to employ. We find this taxonomy helpful in analyzing the conditions claim against Hasty, Sherman, and Zenk.* 1. Official Conditions The MDC Plaintiffs generally allege that the “official conditions” to which the MDC Defendants subjected them constituted punishment. We do not address wheth- er Plaintiffs have sufficiently alleged an express intent to punish, but rather analyze whether they have plausibly pleaded that (1) the MDC Defendants caused them to suffer the challenged conditions, and that (2) the chal- lenged conditions were “not reasonably related to a legit- imate goal,” which allows us to infer punitive intent, Wolfish, 441 U.S. at 539. The MDC Plaintiffs plausibly plead that Hasty and Sherman are personally responsible for and caused the MDC Plaintiffs to suffer the challenged conditions. The Yomplaint contains allegations that Hasty ordered the creation of the ADMAX SHU and directed two of his subordinates to design “extremely restrictive conditions of confinement.” Compl. 1924, 75; see also id. 176 (de- © Plaintiffs’ allegations against Zenk do not extend to the “unofficial abuse” nor to any harm arising from the “official conditions” that oc- curred prior to April 22, 2002, the date he beeame MDC Warden. 49a scribing the extreme conditions in the ADMAX SHU). According to the Complaint, those conditions were then approved and implemented by Hasty and Sherman. /d. 175. The OIG reports support these allegations. While the decision to impose highly restrictive conditions was made at BOP headquarters, OIG Report at 19, MDC officials created the particular conditions imposed, id. at 124-25. The reports specify that MDC officials modified one wing of the preexisting SHU to accommodate the detainees and that the ADMAX SHU was “designed to confine the detainees in the most restrictive and secure conditions permitted by BOP policy.” Supplemental OIG Report at 2-3. As Warden and Associate Warden of the MDC, Has- ty and Sherman had the responsibility to carry out these tasks. But that alone would not sustain liability for ei- ther. However, the MDC Plaintiffs also plausibly plead that Hasty and Sherman subjected them to the challenged conditions with punitive intent because the conditions were “not reasonably related to a legitimate goal.” Wolf- ish, 441 U.S. at 539. Specifically, the MDC Plaintiffs al- lege that Hasty and Sherman imposed these harsh condi- tions despite the fact that they “were aware that the FBI had not developed any information to tie the MDC Plain- tiffs [and other detainees] they placed in the ADMAX SHU to terrorism.” Compl. 169. As discussed above with respect to the DOJ Defendants, individualized sus- picion was not required to subject detainees to the re- strictive conditions of confinement inherent in any deten- tion. But the challenged conditions were not simply re- strictive; they were punitive: there is no legitimate gov- ernmental purpose in holding someone as if he were a 50a terrorist simply because he happens to be, or appears to be, Arab or Muslim. The MDC Defendants, and our dissenting colleague, note that BOP Headquarters ordered that the detainees “be placed in the highest level of restrictive detention” and, thus, argue that we cannot infer punitive intent from the MDC Defendants’ compliance with that order. See Dissenting Op., post at 70 n.40, 71 (quoting OIG Report at 112). They further claim that because the FBI had designated the individuals held in the ADMAX SHU as “of interest,” the MDC Defendants are absolved from li- ability. See, e.g., Hasty Br. 17, 25-26. But even if Hasty and Sherman initially believed that they would be housing only those detainees who were suspected of ties to terrorism, the Complaint contains sufficient factual allegations that the MDC Defendants eventually knew that the FBI lacked any individualized suspicion for many of the detainees that were sent to the ADMAX SHU. Plaintiffs allege that Hasty and Sherman received regular written updates explaining why each de- tainee had been arrested and including “all evidence rel- evant. to the danger he might pose” to the MDC, and that these updates often lacked any indication of a suspicion of a tie to terrorism. Compl. 169." They further explain that “{t]he exact language of these updates was repeated weekly, indicating the continued lack of any information ~ For example, the MDC Defendants were informed that Plaintiff Abbasi was “‘encountered’ by INS pursuant to an FBI lead; that he used a fraudulent passport to enter the U.S. to seek asylum, and lat er destroyed that passport; that he requested and was denied vari- ous forms of immigration relief; that he obtained and used a fraudu- lent advance parole letter to enter the country, and that he was thus inadmissible. The update included no statement of FBI interest in Abbasi.” Compl. 972. 5la tying |Plaintiffs] to terrorism, or tending to show that any of them might pose a danger.” /d. 173. The MDC Plaintiffs relatedly allege that Hasty and Sherman knew that BOP regulations require individual- ized assessments for detainees placed in the SHU for more than seven days, yet ordered the MDC Plaintiffs’ continued detention in the ADMAX SHU without per- forming these assessments, and Hasty “ordered [his] subordinates to ignore BOP regulations regarding deten- tion conditions.” /d. 168; see also zd. 1973-74. The MDC Plaintiffs further allege that Hasty and Sherman approved a document that falsely stated that “executive staff at MDC had classified the ‘suspected ter- rorists’ as ‘High Security’ based on an individualized as- sessment of their ‘precipitating offense, past terrorist behavior, and inability to adapt to incarceration.’” /d. 174. In addition, the MDC Plaintiffs allege that Hasty and Sherman continued to detain them in the ADMAX SHU even after affirmatively learning that the FBI lacked individualized evidence linking Plaintiffs to terror- ism. See id. 1969-71, 74. These allegations are but- tressed by Plaintiffs’ assertions that they remained con- fined in the ADMAX SHU even after receiving final clearance from the New York FBI field office and FBI Ileadquarters. For instance, the Complaint alleges that Benamar Benatta was cleared on November 14, 2001, that this information was available to the MDC, and that Benatta nonetheless remained in the ADMAX SHU until April 30, 2002. See id. 1188. The OIG Report directly supports these allegations; as stated by one BOP official, all 9/11 detainees at the MDC were placed in the ADMAX SHU and subjected to the of- ficial conditions because, at least initially, “the BOP did not really know whom the detainees were.” OIG Report 52a at 19; see also Compl. 14; OIG Report at 112, 126. Spe- cifie factual allegations that Hasty and Sherman failed to assess whether the restrictive conditions were appropri- ate for individual 9/11 detainees buttress the MDC Plain- tiffs’ claim that the challenged conditions were not rea- sonably related to a legitimate goal, and that Hasty and Sherman were personally responsible for the treatment. We recognize that the MDC Defendants may have been in a difficult position when they received detainees without accompanying information regarding those indi- viduals. Record proof may eventually establish that the MDC Plaintiffs’ claim is limited to the period of time that Hasty and Sherman knew that the MDC Plaintiffs were being held without suspicion of ties to terrorism. But we cannot conclude, at least at the motion to dismiss stage, that it was reasonable to take a default position of impos- ing the most restrictive form of detention available when one lacks individualized evidence that the detainee poses a danger to the institution or the nation. Accordingly, we conelude that the MDC Plaintiffs plausibly plead a sub- stantive due process claim against Hasty and Sherman as to the official conditions. The Complaint does not, however, permit an inference of personal liability as to Zenk, who did not become MDC Warden until April 22, 2002, when only two Plaintiffs re- mained in the ADMAX SHU. Fundamentally, the allega- tions that personally identify Zenk are too general and conclusory to support Plaintiffs’ claim. We therefore dismiss the MDC Plaintiffs’ substantive due process claim against Zenk. 2. Unofficial Abuse The district court properly viewed the MDC Plaintiffs’ “unofficial abuse” allegations under the deliberate indif- ference standard commonly applied in the Eighth 58a Amendment prisoner-mistreatment context. See Turk- men III, 915 F. Supp. 2d at 341 & n.13." Given the na- ture of the MDC Plaintiffs’ “unofficial abuse” allegations, premising liability on Hasty and Sherman’s deliberate indifference is consistent with /qgba/’s holding that Bivens defendants are liable only if, through their own actions, they satisfy each element of the underlying constitutional tort. See 556 U.S. at 676. Prior to /qgbal, this Court recognized claims against a supervisory defendant so long as the defendant was per- sonally involved with the alleged constitutional violation. In Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), this Court identified five ways in which a plaintiff may estab- lish a defendant’s personal involvement. One is through a defendant’s “deliberate indifference.” /d. As the dis- trict court explained, the fact that a particular type of conduct constitutes “personal involvement” under Colon does not inherently preclude the conduct from also sup- porting a theory of direct liability. Turkmen 11], 915 F. Supp. 2d at 335-36. For instance, plausibly pleading that a defendant “participated directly in the alleged constitu- tional violation”—one form of personal involvement enu- merated in Colon, 58 F.3d at 873—could establish direct, as opposed to vicarious, liability. The proper inquiry is “ The deliberate indifference standard would clearly apply if the MDC Plaintiffs had been prisoners entitled to the Eighth Amend- ment’s protection against cruel and unusual punishment. See Walk- er v. Schalt, 717 F.3d 119, 125 (2d Cir. 2013). Because a pretrial de- tainee’s rights are at least as robust as those of a sentenced prisoner, we have applied the Fighth Amendment deliberate indifference test to pretrial detainees bringing claims under the Due Process Clause of the Fifth Amendment. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). We do not address whether civil immigration de- tainees should be governed by an even more protective standard than pretrial criminal detainees. 54a not the name we bestow on a particular theory or stand- ard, but rather whether that standard—be it deliberate indifference, punitive intent, or discriminatory intent— reflects the elements of the underlying constitutional tort. See /gbal, 556 U.S. at 676 (“The factors necessary to establish a Bivens violation will vary with the constitu- tional provision at issue.”). Our conclusion is consistent with /gbal, this Court’s prior rulings, see Walker, 717 F.3d at 125, and the weight of Circuit precedent. For instance, in Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011), the Ninth Circuit de- termined that /gbal does not preclude Bivens claims premised on deliberate indifference when the underlying constitutional violation requires no more than deliberate indifference. See also Dodds v. Richardson, 614 F.3d 1185, 1204-05 (10th Cir. 2010); Sandra T.E. v. Grindle, 599 F.3d 583, 590-91 (7th Cir. 2010); Sanchez v. Pereira- Castillo, 590 F.3d 31, 49 (1st Cir. 2009). The MDC Plaintiffs’ “unofficial abuse” claim therefore survives so long as Plaintiffs plausibly plead that the conditions were sufficiently serious, and Hasty and Sherman “kn{e]w of, and disregard[ed], an excessive risk to inmate health or safety.” Walker, 717 F.3d at 125 (in- ternal quotation marks omitted); accord Cwoco, 222 F.3d at 107. The MDC Plaintiffs clearly meet this standard with respect to Hasty. Simply stated, their factual alle- gations permit the inference that he knew that MDC staff subjected the MDC Plaintiffs to the “unofficial abuses” and permitted—if not facilitated—the continua- tion of these abuses. See Compl. 9924, 77-78, 107, 109-10. For example, the Complaint contains allegations that Hasty avoided evidence of detainee abuse by “neglecting to make rounds on the ADMAX [SHU] unit,” as was re- quired of him by BOP policy. /d. 124. The MDC Plain- 55a tiffs also allege that Hasty was nonetheless made aware of the abuse “through inmate complaints, staff com- plaints, hunger strikes, and suicide attempts. ” TId.; see oe id. 1977-78 (detailing how Hasty made it difficult for detainees to file complaints and ignored the evidence when they did, and how staff officials who complained were called “snitches” and were threatened). Indeed, complaints about abuse of 9/11 detainees were pervasive enough to cause the BOP to videotape all detainee movements and resulted in the investigations later de- tailed in the OIG reports. /d. 1107. The MDC Plaintiffs also complain that Hasty encouraged his subordinates’ harsh treatment of the detainees by himself referring to the detainees as terrorists. /d. 1977, 109. The allegations against Sherman, because they are more general and conclusory in nature, are more tenu- ous. For instance, Plaintiffs allege principally that Sherman “allowed his subordinates to abuse MDC Plain- tiffs and class members with impunity. Sherman made rounds on the ADMAX SHU and was aware of conditions there.” /d. 126. These allegations lack a specific factual basis to support a claim that Sherman was aware of the particular abuses at issue. Therefore, we hold that the MDC Plaintiffs fail to plausibly plead an unofficial condi- tions claim as to Sherman.” 3. Qualified Immunity The MDC Defendants claim that qualified immunity is appropriate because they were merely following the or- ders of BOP superiors, “with the input and guidance of the FBI and INS.” See, e.g., Hasty Br. 33. Specifically, _ — — ——- - ———_ © The MDC Plaintiffs nonetheless maintain a substantive due pro- cess claim against Sherman as to the official conditions, as discussed supra. 56a Hasty claims that the “BOP, INS, and FBI officials or- dered |him] to place ‘high interest’ 9/11 detainees in the ADMAX SHU, and directed that they be subject to the ‘tightest’ security possible.” /d. He further argues that “(tlhe sole basis for the detainees’ confinement in the ADMAX SHU—the FBI’s investigative interest—was outside the scope of MDC officials’ discretion.” /d. at 35. By extension, he claims that it was reasonable to detain the MDC Plaintiffs and other “high interest” 9/11 detain- ees in the ADMAX SHU. These arguments fail. First, as with the DOJ Defend- ants, our qualified immunity analysis in Hasty applies with equal force to the MDC Plaintiffs’ conditions claim against Hasty and Sherman in this case. See Hasty, 490 F.3d at 168-69. In 2001, it was clearly established that punitive conditions of confinement, like those involved here, could not be imposed on pretrial detainees such as the MDC Plaintiffs. As discussed above with respect to the DOJ Defendants, Wolfish made clear that a condition of pretrial detention not reasonably related to a legiti- mate governmental objective is punishment in violation of the constitutional rights of detainees. See 441 U.S. at 535-39 & n.20; Hasty, 490 F.3d at 169. Furthermore, giv- en the nearly identical claims and circumstances in Hasty and this case, we see no reason to depart from our prior determination that Hasty was not entitled to qualified immunity. Nor is Hasty entitled to qualified immunity with re- gard to the unofficial conditions claim. As discussed, the MDC Plaintiffs have plausibly alleged that Hasty per- sonally violated their constitutional rights by knowing of, and disregarding, an excessive risk to their health or safety. The right of the MDC Plaintiffs to be free from such unofficial abuse was clearly established at the time 57a of the events in question. See, e.g., DeShaney v. Winne- hago Cuty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989) (“|W |hen the State by the affirmative exercise of its pow- er so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it trans- sses the substantive limits on state action set by ... the Due Process Clause.”); see also Walker, 717 F.3d at 125, 130; Cuoco, 222 F.3d at 106. Plaintiffs’ allegations, the OIG Report, and the MDC Defendants’ arguments confirm that Hasty and Sherman housed 9/11 detainees for extended periods of time in highly restrictive conditions without ever obtaining indi- vidualized information that would warrant this treat- ment. Because Plaintiffs’ allegations support an infer- ence of punitive intent, and it would be inappropriate to wrestle with competing factual accounts at this stage of the litigation, we hold that a reasonable officer in the MDC Defendants’ position would have concluded that this treatment was not reasonably related to a legitimate goal. IV. CLAIM 2: EQUAL PROTECTION—CONDITIONS OF CONFINEMENT Plaintiffs next assert a claim that Defendants subject- ed them to the harsh conditions of confinement detailed above based on their race, ethnicity, religion, and/or na- tional origin, in violation of the equal protection guaran- tee of the Fifth Amendment.” * All Plaintiffs assert an equal protection claim against the DOJ De- fendants. Abbasi, Khalifa, Mehmood, and Bajracharya do not assert this claim against Zenk, and Sachdeva and Turkmen do not make this claim against any of the MDC Defendants. 58a A. Applicable Legal Standard To state an equal protection violation under the Fifth Amendment, “the plaintiff must plead and prove that the defendant acted with discriminatory purpose.” /qodal, 556 U.S. at 676. “[{PJurposeful discrimination requires more than intent as volition or intent as awareness of conse- quences.” /d. (internal quotation marks omitted). “It in- stead involves a decisionmaker’s undertaking a course of action because of, not merely in spite of, [the action’s] ad- verse effects upon an identifiable group. Jd. at 676-77 (alteration in original) (internal quotation marks omit- ted). A plaintiff can show intentional discrimination by: (1) “point[ing] to a law or policy that expressly classifies per- sons on the basis of” a suspect classification; (2) “identi- fy{ing| a facially neutral law or policy that has been ap- plied in an intentionally discriminatory manner ;}” or (3) “alleg{ing} that a facially neutral statute or policy has an adverse effect and that it was motivated by discrimin- atory animus.” Brown v. City of Oneonta, N.Y., 221 F.3d 329, 337 (2d Cir. 2000) (internal quotation marks omit- ted). The district court characterized Plaintiffs’ equal pro- tection claim as falling within the first category—that is, a claim that Defendants subjected Plaintiffs to the chal- lenged conditions of confinement pursuant to a policy that expressly classified Plaintiffs on the basis of their race, ethnicity, religion, and/or national origin. Given our reading of Plaintiffs’ allegations and arguments on ap- peal, we will not analyze this claim, particularly as it re- lates to the MDC Defendants, under the first equal pro- tection theory alone. 59a B. The DOJ Defendants The district court concluded that Plaintiffs failed to state an equal protection claim against the DOJ Defend- ants, but “f{oujnd the issue to be a close one.” Turkmen 11], 915 F. Supp. 2d at 345. In view of our analysis of Plaintiffs’ substantive due process claim against the DOJ Defendants, and particularly these Defendants’ roles with respect to the merger of the New York List, we hold that the MDC Plaintiffs have adequately alleged an equal protection claim against Ashcroft, Mueller, and Ziglar. Plaintiffs’ well-pleaded allegations and the OIG Re- port give rise to the following reasonable inferences, which render plausible the MDC Plaintiffs’ equal protec- tion claim against the DOJ Defendants: (1) the New York FBI field office discriminatorily targeted individuals in the 9/11 investigation not based on individualized suspi- cion, but rather based on race, ethnicity, religion, and/or national origin, and those individuals were then placed on the New York List; (2) the DOJ Defendants knew about the discriminatory manner in which the New York FBI field office placed individuals on the New York List; and (3) the DOJ Defendants condoned the New York FBI’s discrimination by merging the New York List with the INS List, thereby ensuring that some of the individuals on the New York List would be subjected to the chal- lenged conditions of confinement. Plaintiffs allege that the New York FBI field office targeted individuals in the PENTTBOM investigation and placed them on the New York List based on race, ethnicity, religion, and/or national origin. “[{T]Jhe head of the New York FBI field office stated that an individual’s Arab appearance and status as a Muslim were factors to consider in the investigation.” Compl. 142. Even more telling, a supervisor in the same local FBI office, “who 60a oversaw the clearance process|,| stated that a tip about Russian tourists filming the Midtown tunnel was ‘obvi- ously’ of no interest, but that the same tip about Egyp- tians was of interest.” /d. Individuals who were arrested by the New York FBI and INS in connection with a PENTTBOM lead were automatically treated as “of in- terest,” OIG Report at 40-41, and were placed on the New York List, see id. at 53. This discriminatory approach, focusing on “an individ- ual’s Arab appearance,” Compl. 142, is consistent with what is alleged to have occurred in Bajracharya’s case. Bajracharya, who as noted, is a Buddhist and native of Nepal, came to the FBI's attention when an employee from the Queens County District Attorney’s Office “ob- served an ‘[A]rab male’ videotaping outside a Queens| | office building that contained the Queens County District Attorney[’s] Office and a New York FBI office.” /d. 1230. Investigators from the District Attorney’s Office questioned Bajracharya about “why he was taking pic- tures,” and Bajracharya “tried to explain that he was a tourist.” /d. He was arrested after acknowledging he overstayed his visa and was detained in the ADMAX SHU. Given the Complaint’s allegations regarding the New York FBI’s tactics, it is reasonable to infer that offi- cials in the New York FBI targeted certain individuals, including Plaintiffs, for investigation, arrest, and place- ment on the New York List simply because they were, or appeared to be, Arab or Muslim, and not because of any suspicion regarding a link to terrorism. As we conclude above with respect to the substantive due process claim, the DOJ Defendants were informed of the problems presented by the New York List. As noted, the OIG Report reveals that by October 2001 the SIOC Working Group learned about the New York List and 6la that “officials at the INS, FBI, and [DOJ] raised con- cerns about, among other things, whether the aliens had any nexus to terrorism.” OIG Report at 53. Plaintiffs al- lege that a high-ranking DOJ official noted that individu- als were detained “without any attempt” to determine if they were of “actual interest,” and that the official “was concerned early in the investigation that detainees were being held simply on the basis of their ethnicity.” Compl. 445. The DOJ Defendants were unlikely to have re- mained unaware of these concerns, as they “received de- tailed daily reports of the arrests and detentions,” id. 947, see also id. 1163-64, and Mueller “was in daily con- tact with the FBI field offices regarding the status of in- dividual clearances,” id. 157. In light of these allega- tions, we can reasonably infer that these Defendants were aware that the New York FBI field office was plac- ing individuals on the New York List not because of any suspected ties to terrorism but rather because they were, or were perceived to be, Arab or Muslim. While the DOJ Defendants’ mere knowledge of this discriminatory action by the New York FBI field office would be insufficient to allow for the reasonable inference that these Defendants possessed the discriminatory pur- pose required to state an equal protection claim, Plain- tiffs’ allegations are not limited to the DOJ Defendants’ knowledge alone. Rather, as we discuss in detail in the substantive due process analysis above, Plaintiffs plausi- bly plead that Ashcroft made the decision to merge the New York List with the national INS List, ensuring that some of the individuals on the New York List would be placed in, or remain detained in, the challenged condi- tions of confinement. Plaintiffs further allege that Mueller and Ziglar were aware that the New York List contained detainees against whom the FBI had asserted 62a no interest and that subjecting them to the challenged conditions would be facially unreasonable. In ordering and complying with the merger of the New York List, the DOJ Defendants actively condoned the New York FB] field office’s discriminatory formulation of that list. The DOJ Defendants’ condonation of the New York BI field office’s purposeful discrimination allows us to reasonably infer at the motion to dismiss stage that the DOJ Defendants themselves acted with discriminatory purpose. The Supreme Court in Jgbal stated that “dis- crete wrongs—for instance, beatings—by lower level Government actors[] ... if true, and if condoned by [Ashcroft and Mueller], could be the basis for some infer- ence of wrongful intent on [Ashcroft and Mueller’s] part.” 556 U.S. at 683. In a similar vein, we have held, in a case involving an equal protection claim under 42 U.S.C. $1983, that a reasonable factfinder could conelude that the Commissioner of the Fire Department of the City of New York intended to discriminate when he decided to continue to use the results of employment examinations that he knew had a disparate impact based on race. See United States v. City of New York, 717 F.3d 72, 94 (2d Cir. 2013). Here, it is reasonable to infer that Ashcroft, Mueller, and Ziglar possessed the requisite discriminato- ry intent because they knew that the New York List was formed in a discriminatory manner, and nevertheless condoned that discrimination by ordering and complying with the merger of the lists, which ensured that the MDC Plaintiffs and other 9/11 detainees would be held in the challenged conditions of confinement. Contrary to the dissent’s contentions, see Dissenting Op., post at 76-78, this case is distinguishable from Jgbal, where the Supreme Court concluded that the plaintiff failed to state an equal protection claim. In Iqbal, there 63a were “more likely explanations” for why the plaintiff was detained in harsh conditions other than his race, religion, or national origin. 556 U.S. at 681. Those more likely explanations for the plaintiff’s treatment, according to the Supreme Court, were that Ashcroft and Mueller sup- ported “a legitimate policy ... to arrest and detain indi- viduals because of their suspected link to the attacks,” which “produce[d] a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.” /d. at 682 (emphasis added). The Supreme Court noted that “/o/n the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts.” Id. (emphasis added); see also id. at 683 (noting that all the allegations in /gbal “sug- gest{ed]| is that the Nation’s top law enforcement officers ... sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity” (emphasis added)). In this case, unlike in /qbal, it is not “more likely” that the MDC Plaintiffs were detained in the challenged con- ditions because of their suspected ties to the 9/11 attacks. Indeed, as discussed at length earlier, Plaintiffs have plausibly alleged that they were detained without any suspicion of a link to terrorist activity and that the DOJ Defendants knew that the government lacked infor- mation tying Plaintiffs to terrorist activity, but decided to merge the lists anyway.” Thus, unlike in /qbal, there was " Given the clear language used by the Supreme Court in /yind re- garding the detainees’ connections to terrerism, 556 U.S. at 682-83, we understand the /qbal Court to have rejected as conclusory the al- legation in the Jqgbal complaint identified by the dissent, which only 64a no legitimate reason to detain the MDC Plaintiffs in the challenged conditions and, thus, no obvious, more likely explanation for the DOJ Defendants’ actions with respect to the New York List merger.” The dissent also argues that we cannot plausibly infer the DOJ Defendants’ discriminatory intent from the merger decision because not all of the individuals on the New York List were subjected to the same level of re- strictive confinement. See Dissenting Op., post at 79-80. But the fact that some individuals of the same race, eth- nicity, religion, and/or national origin as the MDC Plain- tiffs were restrained in the Passaic County Jail, as op- posed to the ADMAX SHU, hardly dooms the MDC Plaintiffs’ claim against the DOJ Defendants. There is no allegation that the DOJ Defendants were responsible for the assignment of certain actual or perceived Arab and Muslim males to Passaic as opposed to the more restric- tive ADM [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0663%3A02. Public record. Not legal advice.