bivens question mark -- bivens? >> yes, there would be. but in terms of the questions of line drawing that were raised before, the two nations have drawn the line here and this is a circumstance where the conduct here is clearly extra territorial. >> but that's the point. if in fact all that mattered were the existence of a well-recognized andriy line, this case is over. you win. but that well-recognized boundary line was present in boumediene, and certainly boumediene suggests, while it is a factor, it is not the only factor that determines the reach of the fourth amendment. so there we are. we're in court because it is not the only factor. and now you add in all the stuff about the culvert and who's playing there and who might be playing there and the 500,000 people who cross every day and the joint maintenance of the culvert and the fact that all this conduct happened in the united states, that's what your opponent brother over there is trying to do. >> boumediene had to do with the substantive application of the fourth amendment which

amendment, there is a bivens action. now we have an exception and the exception is the military. so i think you can look at it this either way. i think the -- the more -- i would tend to look at it as saying, of course, there is a bivens remedy if there is a fourth amendment violation unless you're in the military which no one says this is true. so that's how i've been thinking about the bivens action. i've been thinking the answer to that question turns to the answer to the fourth amendment question. now you can tell me why it's better to use the words you've been using. mr. kneedler: no. the -- the court -- just because the court has recognized a bivens action for a violation of a particular constitutional provision in one context or with respect to one set of defendants, it doesn't mean that it should extend it and that's the word the court has used. my point about the eighth amendment is the court declined o recognize a bivens violation for -- justice cagan: mr. kneedler, you -- you get the point. the point of it is

beware of cutting off bivens. you never know what will happen. >> i recognize your honor is not suggesting -- [crosstalk] >> you can with respect to your honor, i think it points out the problem with extending bivens to national security policy decisions. decisions in general. it should not be in the national security policy context that this court should be calibrating the deterrence -- under deterrence and over deterrence in that situation. that is a judgment for congress. this is the problem with policies -- it cannot really be the case that the right way to get effective compensation is to put the attorney general, the director of the fbi, and the commissioner of the ins all on the hook. justice kennedy: what is the best authority that you have for saying, assuming there is a bivens action, it has to be cut off at the lower level, not the highest level? >> it is not the highest level of officials, it is when there is a broad national security policy. i think that is what this court of malesko, it's not through

if i could get back for a moment to one of the bivens questions, and that's about whether bivens is appropriate for altering policy. i don't know if i was able to get this point out as well as i'd like to before to explain that i don't think that there is really any precedent for the idea that you can't use bivens to deter creation of a clearly unconstitutional policy. and if the court did rule in that way, what would there be to deter the creation of unconstitutional policies in the future? now of course policies can be stopped as they are ongoing. but that does not protect the individual amongst whom potential serious law enforcement action has been taken. >> the normal answer would be the normal injuntive action would challenge it which would seem to be a more appropriate way of doing it than individual damages actions against officials responsible. >> but an injuntive claim, while it could stop, currently -- current unconstitutional conduct cannot defer current unconstitutional conduct from occurring. it does not deter the future attorney general from creating an unconstitutional policy and

and officer bivens showed up there and he was -- he responded. he was amazing.. >> jimmy: now he's there >> jimmy: there's officer bivens. [ cheers and applause ] why -- are you guys traveling everywhere together now? >> yeah. no. i thought it would be nice to have him along. he makes me feel comfortable now in scary situations. [ laughter ] he's there and i know everything is okay. >> jimmy: were you surprised that it was casey in the car? >> at first i knew it was somebody who was famous but i didn't -- [ laughter ] i didn't put my finger on it. i had to google him later. [ laughter ] i told him afterwards, this guy's really famous. [ applause ] >> we're not going anywhere else together now. [ laughter ] >> jimmy: well, i hope you guys enjoyed your last public appearance together. [ laughter ] well there, you go. a lot of people will bring like their parents and stuff to the show. you brought your police officer. >> yes, sir. [ cheers and applause ] >> jimmy: casey affleck, everybody. "a ghost story" opens july 7th. we'll be right back. [ cheers and applause ]