I thank George Brown, Sudha Setty, Bill Simon, and Steve Vladeck for comments on a previous draft.
National security can turn on which flight to take. An official can put a suspected terrorist on a plane with over a hundred innocent passengers, or select a flight to another country, where the suspect gains first-hand experience of “enhanced interrogation techniques.” One influential court recently cited this stark choice in a decision on the availability of damages to redress extraordinary rendition.1 Unsurprisingly, the court ruled that “special factors” barred the claim.
The choice-of-flights dilemma exemplifies one of two conflicting images of government action in national security cases. In decisions on access to habeas corpus, the Supreme Court has portrayed the government as manipulating the Constitution to evade accountability.2 Providing detainees with access to habeas corpus curbed this manipulation and promoted deliberation about the risks of monolithic political power. In cases barring damage remedies, however, the same officials received a miraculous makeover. In this domain, the Court has portrayed government as eminently rational3 and plaintiffs as manipulating the system.4 These conflicting images are not new. In the past as well, the Court has tried to maximizePage 198 deliberation by limiting the volatility that crises often generate.5 However, the gap between images of government in the most recent decisions threatens to accelerate the “pendular swings” that the Court feared.6 Closing that gap requires an approach to damages claims that departs from judicial trends.
Historically, the Court has sought to correct for errors in two perennial perspectives on national security crises. Presentist bias (or “myopia”)7 often afflicts officials, who order short-term fixes like mass detentions or curbs on free speech with troubling long-term consequences.8 To remedy this bias, the courts have preserved detainees’ access to habeas corpus and inferred the availability of a cause of action for damages under the Constitution.9Page 199 Courts also correct for hindsight bias.10 Graced with the omniscience of hindsight, courts and juries overestimate officials’ ability to correctly decide whom to arrest, detain, or interrogate. To avoid separation-of-powers issues prompted by punishing officials for mere mistakes, courts have ruled that officials retain qualified immunity from suit unless they have violated “clearly settled” law.11
While judicial correctives for both myopia and hindsight bias vindicate values like due process and the separation of powers, they also reduce volatility. Myopia and hindsight bias hold the rule of law hostage to wide political oscillations. These occur because people facing losses are risk-prone.12 Behavioral substitutions that adjust to changes in the law13 mayPage 200 entail risk-seeking that undermines the potential for deliberation among divergent stakeholders. For example, when political dissenters lose faith in the prospects for a peaceful transition from myopic policies, they may substitute revolutionary action for reformist speech.14 Having staged a revolution, some erstwhile rebels learn the wrong lesson, using the machinery of the state to police the purity of adherents.15 Remnants of the former regime recoup, citing the rebels’ excesses. In each phase of the cycle, differentiation from the previous phase becomes a proxy for soundness on the merits. A carefully crafted damages remedy restrains official myopia and thereby curbs this counterproductive cycle. Viewed in that light, judicial solicitude for free speech is not only an expression of constitutional principle; it is also an institutional mechanism for safely containing the sometimes volatile “experiment” of popular governance.16
Hindsight bias’s role in the promotion of volatility compounds the challenges that judicial review must confront. Theorists have observed that subjects of regulation who fear regulators’ hindsight bias become alienatedPage 201 from the entire legal regime.17 They view the status quo as intolerable and take unwise risks that undermine compliance. Since defendants in Bivens actions are subject to regulation by judges and juries, fear of hindsight bias can make them unduly risk-prone. Officials who fear future retaliation may cling stubbornly to power, doubling down on repressive measures because they view the status quo as trending in the wrong direction.18 This risk-prone behavior exacerbates the cycling that the Boumediene v. Bush Court sought to curb. To reduce cycling and enhance deliberation, courts must strive for an equilibrium that corrects for both myopia and hindsight bias.
Unfortunately, recent judicial decisions have abandoned this search for an equilibrium and embraced categorical deference or intervention. In Ashcroft v. Iqbal19 and Arar v. Ashcroft,20 categorical deference carried the day. Viewing qualified immunity as insufficient to protect against hindsight bias, Iqbal dismissed claims that senior officials turned a blind eye to the mistreatment of post-9/11 detainees. Arar precluded claims that defendants aided an “extraordinary rendition” to Syria. Neither decision discussed whether official myopia might have led to the brutal treatment that the plaintiffs alleged. Instead, these decisions viewed responses to risk as binary, requiring that officials choose between abusing detainees and abdication in the face of terror.21
The categorical-deference approach has an interventionist counterpart.22 In al-Kidd v. Ashcroft23 and Padilla v. Yoo,24 courts evaluated officials’ decisions from the cozy recliner of retrospect. Padilla, involving a formerly detained alleged enemy combatant’s claim for damages, asked only whether the plaintiff’s rights were violated. The court collapsed qualified immunity’s core distinction between the present legal status of the plaintiff’s rights and their status at the time of the official defendant’s decision. The court in al-Kidd, a case involving a former material witness’s claim that he was wrongly detained, insisted on a distinction between witness and target that would deprive officials of needed flexibility in transnational terrorism cases. Ironically, the interventionist decisions posit the same binary choice as the categorical-deference model: overreaching or abdication. Categorical deference and intervention thus undermine hopes for equilibrium between presentist and hindsight biases.
To salvage that equilibrium, this Article proposes an innovation-eliciting approach to Bivens remedies in national security cases. Utilizing insights from literature on remedying cognitive biases25 and regulatory failure,26 it gives officials a stake in the development of a broader repertoire of national security strategies. Officials must show that in other cases they implemented alternatives to the conduct alleged in the lawsuit. When the alternative dispositions are congruent, proportional, and proximate in time to the actions at issue, the court rewards the official by dismissing the lawsuit prior to the qualified immunity phase. Put simply, the approach exchangesPage 203 officials’ liability in a specific case for an overall increase in the cultivation of alternatives. Over time, the innovation-eliciting approach will yield an equilibrium between myopia and hindsight bias, limiting the “pendular swings” in policy that Justice Kennedy identified in Boumediene as a central threat to constitutionalism.
The Article proceeds in four parts. Part II describes both presentist and hindsight biases. It traces these biases not only through the cognitive-psychology literature, but also through the Framers’ concerns and the Founding Era’s reactions to the revolution in France. The discussion of the effect of the French Revolution illustrates courts’ concerns with seeking an equilibrium between myopia and hindsight bias. A tilt toward either extreme magnifies risk-seeking and volatility at deliberation’s expense.
Part III critiques the categorical deference and interventionism that have upset the landscape of constitutional damages claims in recent national security cases. The binary choice that deference posits between overreaching and abdication actively discourages the development of alternatives that vindicate both liberty and security. The result in practice is categorical impunity for officials. However, categorical interventionism does not improve on deference. Interventionism also depicts officials’ choices as binary. In pushing officials toward abdication, interventionism fails to generate nuanced alternatives. Moreover, the turn toward intervention weakens the barrier against burdensome discovery that qualified immunity provided. Categorical intervention in lower courts thus bolsters the argument by champions of deference that qualified immunity cannot adequately protect officials against hindsight bias.
Part IV advances the...