Ziglar v. Abbasi and the Demise of Accountability
Ziglar v. Abbasi and the Demise of Accountability
Jules Lobel 0 1
0 Thi s Colloquium is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact
1 University of Pittsburgh Law School
Recommended Citation Jules Lobel, Ziglar v. Abbasi and the Demise of Accountability, 86 Fordham L. Rev. 2149 (). Available at: https://ir.lawnet.fordham.edu/flr/vol86/iss5/9
Law; Criminal Law; Criminal Procedure; Supreme Court of the United States; Constitutional Law; Fourth
Amendment; Legal Remedies; President/Exeuctive Department
Thi s colloquium is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol86/iss5/9
ZIGLAR V. ABBASI AND THE
DEMISE OF ACCOUNTABILITY
In the recent decision Ziglar v. Abbasi,1 the U.S. Supreme Court rejected
constitutional claims brought by Muslim aliens who were detained—
allegedly in cruel and harsh conditions, and because of their race, religion, or
national origin—in the United States after the attacks of September 11,
2001.2 Justice Kennedy’s opinion for the four-to-two majority held that the
plaintiffs, even assuming that all of their allegations were true, had no
damages remedy against the high-level Bush administration officials who
authorized the allegedly unconstitutional government policies.3 The Ziglar
decision has been criticized as potentially gutting the Bivens4 cause of action,
which allows individuals harmed by federal officials’ violations of
constitutional rights—such as those under the Fourth5 and Eighth6
Amendments—to sue for damages in federal court.7 Justice Breyer pointed
out in his dissent:
* Bessie McKee Walthour Professor of Law, University of Pittsburgh Law School. This
Article was prepared for the Colloquium entitled Access to Justice and the Legal Profession
in an Era of Contracting Civil Liability, hosted by the Fordham Law Review and the Stein
Center for Law and Ethics on October 27, 2017, at Fordham University School of Law.
Given the safeguards against undue interference by the Judiciary in times
of war or national-security emergency, the Court’s abolition, or limitation
of, Bivens actions goes too far. If you are cold, put on a sweater, perhaps
an overcoat, perhaps also turn up the heat, but do not set fire to the house.8
This Article will focus on one important aspect of the Ziglar opinion: its
attempt to distinguish injunctive relief from damages actions. Ziglar’s
attempt to distinguish injunctive relief from a damages remedy was central
to its decision because, at first glance, Ziglar seems in considerable tension
with the Court’s decision almost ten years earlier in Boumediene v. Bush.9 In
Boumediene, the court held that alien detainees at Guantanamo Bay had a
constitutional right to habeas corpus to challenge their detentions.10 The
Court took an insistent role in Boumediene and a number of other War on
Terror cases in asserting jurisdiction over claims challenging the Bush
administration’s national security policies.11 By contrast, the Ziglar Court
was extremely deferential to executive officials’ claims that even hearing
plaintiffs’ claims on the merits could harm national security.12
Justice Kennedy, who wrote both the Boumediene and Ziglar opinions,
suggested that the difference might lie in the differing remedies sought in
each case.13 This Article challenges that assumption and compares Ziglar
with two other important national security cases decided almost two centuries
apart.14 It illustrates that the differing remedies in Boumediene and Ziglar—
injunctive relief and damages, respectively—do not explain the differing
results in those cases. Rather, the Court and the other political branches have
seemingly reached the conclusion that executive officials who violate the
Constitution in times of war or national emergency should not be held
individually accountable for their actions, a conclusion at odds with early
Supreme Court decisions and the views of prominent early leaders of our
government.15 The most dangerous aspect of the Court’s opinion in Ziglar
is not its near evisceration of the Bivens remedy but rather its view that
highlevel government officials should not be held accountable for
unconstitutional decisions made in periods of war or national emergency.16
Part I of this Article discusses Ziglar in light of the Court’s other cases
challenging aspects of the executive’s conduct in the struggle against
terrorism. Part II compares Ziglar with other case law that suggests that the
Ziglar Court’s focus on the potential availability of injunctive relief is not of
central importance to its dismissal of the Bivens claims. This Article
continues in Part III with a historical discussion of official accountability for
unconstitutional conduct during times of national crisis or exigency and early
leaders’ views regarding such official accountability, and provides instances
where unconstitutional official conduct was met with damages liability.
Finally, this Article concludes that Ziglar is at odds with the basic precepts
of the framers’ view of the judicial role in addressing official claims of
necessity during times of national emergency or serious crisis.
I. ZIGLAR AND BOUMEDIENE
Justice Kennedy’s opinion in Ziglar focused on “special factors
necessarily implicated by [plaintiffs’] detention policy claims,” which
counseled against permitting a Bivens action to proceed.17 For one, the
claims “call[ed] into question the formulation and implementation of a
general policy” and challenged “major elements of the Government’s whole
response to the September 11 attacks, thus of necessity requiring an inquiry
into sensitive issues of national security.”18 The Court proclaimed that
“[n]ational-security policy is the prerogative of the Congress and President”
and that the courts have generally deferred to executive branch
determinations of essential national security policies.19
Yet, as the Ziglar Court recognized, all of these talismanic invocations of
national security policy to defeat federal court jurisdiction were rejected in
Boumediene and other War on Terror cases challenging the Bush
administration’s policies with respect to alleged enemy combatants detained
at Guantanamo.20 The Ziglar Court nonetheless dismissed the judicial role
in resolving tensions between security and liberty in times of crisis through
damages actions, holding that “‘congressionally uninvited intrusion’ is
15. See infra Part III.
16. See Ziglar, 137 S. Ct. at 1869.
17. Id. at 1860.
18. Id. at 1860–61.
19. Id. at 1861.
20. Id. at 1861–62.
21. Id. at 1862 (quoting United States v. Stanley, 483 U.S. 669, 683 (1987)).
Ziglar disregards the fact that the Court in Boumediene was far more
intrusive than simply engaging in “congressionally uninvited intrusion.”22
Justice Kennedy’s Boumediene decision struck down—for the first time in
American history—a congressional statute on an issue related to an ongoing
armed conflict,23 one that had affirmatively and explicitly stripped the federal
courts of their authority to entertain habeas petitions filed by detainees held
as alleged enemy combatants at Guantanamo Bay.24 That decision represents
a far more intrusive assertion of judicial review than entertaining a damages
action in the face of congressional silence.
Justice Kennedy also suggested that the difference between the two cases
lies in the heightened separation of powers concerns posed by damages
actions.25 To Kennedy, the separation of powers concerns inherent in
national security cases
are even more pronounced when the judicial inquiry comes in the context
of a claim seeking money damages rather than a claim seeking injunctive
or other equitable relief. The risk of personal damages liability is more
likely to cause an official to second-guess difficult but necessary decisions
concerning national-security policy.26
Moreover, for Kennedy, “of central importance” was that large-scale
policy decisions at issue in Ziglar—unlike the individual claims of
discrimination or law enforcement overreach involved in Bivens—could be
remediable by actions for injunctive relief or possibly habeas relief, which
“would have provided a faster and more direct route to relief than a suit for
money damages.”27 Kennedy returns to the refrain that such injunctive
actions are preferable to money damages because “high officers who face
personal liability for damages might refrain from taking urgent and lawful
action in a time of crisis.”28
Justice Kennedy’s distinction between damages and injunctive remedies is
supported by some commentators. For example, Professor Andrew Kent has
noted the disconnect between appellate court decisions even prior to Ziglar;
these courts disfavor Bivens actions in national security matters and the
Supreme Court’s assertive role in high-profile War on Terror cases.29 Kent
argues that the Court is properly reluctant to allow a damages remedy against
federal officials in national security cases and instead prefers a system-wide
injunctive relief through the issuance of what he terms “law declarations”
rather than providing individual redress.30
However, the Court and Kent’s assertion that the preference of injunctive
relief over damages explains the apparent contradiction between Boumediene
and Ziglar is problematic. First, as Justice Breyer pointed out in dissent, our
history demonstrates that an injunctive action brought during the height of a
war or crisis often presents the most difficult timing for judicial
intervention.31 Such injunctive actions will inevitably be affected by the
emotions occasioned by the crisis.32 The information needed for a court to
decide the constitutional issue will usually be shrouded in secrecy, and the
executive will strongly argue that such information cannot be publicly
disclosed. Moreover, the court will be asked to directly interfere with a
government policy that is claimed to be necessary to defend the country. One
only has to consider what the judicial reaction would have been if the Ziglar
plaintiffs had sought judicial relief in the immediate aftermath of September
11 (when their lack of any relationship to terrorists had not been established,
as it later was) to recognize that a damages action adjudicated years later
would provide a more propitious opportunity for the considered and
dispassionate judicial review of the facts and legality of federal officials’
Second, the Court’s rulings on damages actions have established numerous
safeguards to ensure that plaintiffs can only prevail in cases presenting the
clearest and worst constitutional violations.33 For one, qualified immunity
protects officials unless they have violated a constitutional right that is
“clearly established.”34 In addition, courts have dismissed some Bivens
claims based on the state-secrets doctrine, which precludes sensitive national
security information from being disclosed.35 Furthermore, the “plausible”
pleading requirement of Ashcroft v. Iqbal36 requires the dismissal of a
complaint that contains only “conclusory” allegations.37 All of these
judicially constructed doctrines provide considerable protection for federal
officials in a national security context. Justice Kennedy’s concern that
allowing damages actions may cause future officials to refrain from taking
“urgent and lawful actions in a time of crisis”38 would therefore only impact
an official’s decision to refrain from taking actions that are clearly unlawful.
His rationale therefore seems illogical: Why would damages suits
challenging actions that were clearly unlawful restrain future officials from
taking urgent, and even plausibly lawful, actions in times of crisis?
Moreover, shouldn’t we want some constraints placed on federal and state
officials, instead of allowing them to make these decisions free from
individual accountability for their actions? The qualified immunity defense
is, of course, unavailable in an injunctive action where the Court would be
forced to decide the constitutional issue presented.39
Third, as already noted, the injunctive/damage dichotomy used to explain
the contrasting results in Boumediene and Ziglar has a perverse logic.
Normally, the Court is more deferential to national security determinations
where Congress and the President are acting jointly, or as Justice Jackson
said in Youngstown Sheet & Tube Co. v. Sawyer,40 where executive
emergency power is at its strongest.41 Yet, Boumediene held unconstitutional
a presidential policy—explicitly supported by congressional statute—to deny
the Court habeas jurisdiction to review Guantanamo detentions,42 whereas
Ziglar refused to determine whether a purely executive policy was
unconstitutional because Congress was silent and had not affirmatively
provided for a cause of action.43 Moreover, the judicial intervention in
Boumediene was in tension with and had to distinguish precedent that
appeared to support the denial of habeas jurisdiction to enemy aliens in
wartime and had led the lower courts to unanimously decide against the
plaintiffs.44 In Ziglar, the past precedent of Bivens and Carlson v. Green45
appeared to support the plaintiffs’ claim as a divided en banc circuit court
had so found, which forced the majority to argue that the case presented a
Fourth, Professor Kent’s view that the Court has preferred its
“lawdeclaring”47 role to that of adjudicating individual disputes is inconsistent
with the Court’s restriction of injunctive remedies through the use of standing
doctrine,48 which has increasingly been narrowed to preclude law-declaring
instead of the Court’s traditional role of resolving individual rights claims
where there has been discrete, nongeneralized harm.49 Moreover, had the
Court wished to prefer law-declaring over resolving individual disputes, it
would have left untouched the qualified immunity doctrine, which favors
judicial resolution of constitutional questions even where the ultimate
decision is that a constitutional doctrine is not “clearly established.”50 Thus,
39. See Harlow, 457 U.S. at 819–20.
40. 343 U.S. 579 (1952).
41. Id. at 637 (Jackson, J., concurring).
42. Boumediene v. Bush, 553 U.S. 723, 794–98 (2008).
43. Ziglar, 137 S. Ct. at 1869.
44. See Boumediene, 553 U.S. at 761–64 (distinguishing United States v.
VerdugoUrquidez, 494 U.S. 259 (1990); Johnson v. Eisentrager, 339 U.S. 763 (1950)).
45. 446 U.S. 14 (1980).
46. Ziglar, 137 S. Ct. at 1859–60.
47. Kent, supra note 29, at 1155.
48. See City of Los Angeles v. Lyons, 461 U.S. 95, 111–13 (1983).
49. See, e.g., United States v. Richardson, 418 U.S. 166, 192–93 (1974) (Powell, J.,
50. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
the tension between Boumediene and Ziglar cannot be explained simply by
the Court’s preference for injunctive law-declaring relief over the resolution
of individual damages actions.
Finally, of “central importance” to Justice Kennedy’s Ziglar opinion was
the theoretical availability of injunctive relief and the possibility of habeas
remedy for plaintiffs in Abbasi’s situation.51 As various commentators have
noted, it is unclear whether habeas is even theoretically available to a detainee
in Abbasi’s position who seeks to challenge his conditions of confinement.52
That the plaintiffs in Ziglar were held incommunicado and practically had no
way to challenge the conditions of their detention made either a habeas
petition or a lawsuit seeking injunctive relief difficult, if not impossible, to
bring.53 Indeed, in torture cases, the prisoner will generally either be held
incommunicado or the torture will not continue for the lengthy time needed
to bring a lawsuit, thereby normally rendering the injunctive relief route
unavailable.54 It is no accident that of the various cases challenging alleged
torture by U.S. officials under the Bush administration, none were brought
while the torture was still ongoing, and thus injunctive relief was unavailable.
Yet, there is one scenario that would test the Ziglar majority’s insistence
that injunctive relief as an alternative remedy was really of “central
importance” to its decision.55 What if U.S. officials affirmatively obstructed
a detainee from seeking injunctive relief to prevent his torture by lying to his
attorneys and taking other measures which deliberately barred his access to
court? Surely such deliberate denial of a detainee’s ability to seek injunctive
relief for torture ought to yield the result that no alternative remedy is
available, and Ziglar’s reasoning should lead to the recognition of a Bivens
claim in that specific situation.
Unfortunately, a Bivens remedy for a violation that implicates national
security does not appear available even in that situation, belying the claim
51. Ziglar, 137 S. Ct. at 1862.
52. Vladeck, supra note 7 (noting that the federal circuit courts are split on whether
plaintiffs may use habeas petitions to challenge their conditions of confinement).
53. Ziglar, 137 S. Ct. at 1879 (Breyer, J., dissenting).
54. There are, however, some cases in which it is possible to bring a habeas petition fairly
soon after the detention, as the recent ACLU action challenging a U.S. citizen’s detention in
Iraq or the Center for Constitutional Rights original habeas petition in Rasul v. Bush, 215 F.
Supp. 2d 55 (D.D.C. 2002), illustrate. See Charlie Savage, American Detained by Military
Wants a Lawyer, Government Acknowledges, N.Y. TIMES (Nov. 30, 2017),
[https://perma.cc/N2TF-XPXA]; Doe v. Mattis—Challenge to Detention of American by U.S.
Military Abroad, ACLU (Feb. 14, 2018),
[https://perma.cc/ZZJ2-5FTX] (discussing a habeas petition, filed approximately three weeks
after detention appears to have begun, on behalf of an unidentified American citizen detained
in Iraq after being allegedly captured in Syria fighting alongside the Islamic State); see also
Petition for Writ of Habeas Corpus, Rasul, 215 F. Supp. 2d 55 (No. 1:02-cv-00299-CKK). In
Rasul v. Bush, the habeas petitions were filed in February 2002, approximately one month
after the first detainees were brought to Guantanamo. See id.; Rasul v. Bush: Historic Case,
CTR. FOR CONST. RTS. (July 3, 2014),
https://ccrjustice.org/home/what-we-do/our-cases/rasulv-bush [https://perma.cc/D3PD-EC3P] (detailing timeline of action).
55. See Ziglar, 137 S. Ct. at 1862.
that the availability of alternative injunctive or habeas relief is of critical
importance. That exact scenario had been litigated in Arar v. Ashcroft,56
where a divided en banc Second Circuit held, in an opinion foreshadowing
the Supreme Court’s Ziglar decision, that Mr. Arar did not have a Bivens
claim for damages under federal law.57 The Supreme Court denied Arar’s
petition for certiorari.58
II. ARAR V. ASHCROFT AND THE UNAVAILABILITY
OF INJUNCTIVE OR HABEAS RELIEF
Arar v. Ashcroft suggests that the Ziglar Court’s focus on the availability
of injunctive relief is not of central importance to the dismissal of the Bivens
claims. In Arar, government officials were alleged to have deliberately
blocked Arar from pursuing the injunctive remedy explicitly provided by
Congress, yet the court nonetheless held that he had no Bivens claim for
Maher Arar, a dual citizen of Canada and Syria, resided in Ottawa, Canada
with his wife and children.60 In September 2002, Arar was on vacation with
his family in Tunisia when he was asked to return to work in Canada by his
employer, a Massachusetts-based developer and supplier of computing
software.61 Arar purchased a plane ticket back to Canada with a stop at John
F. Kennedy International Airport in New York.62
When Arar arrived at the airport in New York, immigration officials
prevented him from boarding his connecting flight to Canada.63 The officials
erroneously suspected that Arar might be associated with a terrorist group.64
Federal officials detained Arar for the next thirteen days, first at Kennedy
Airport and then at the Metropolitan Detention Center in Brooklyn, New
York.65 He was placed in solitary confinement, denied any food for almost
two days, and repeatedly subjected to harsh and lengthy interrogations by
federal agents concerning his alleged contacts with terrorist groups.66 Arar
categorically denied any such contacts.67
Despite Arar’s denials of any association with terrorist groups,
Immigration and Naturalization Service (INS) Regional Director Scott
Blackman determined that Arar was “clearly and unequivocally” a member
of Al Qaeda, and ordered that he be removed not to Canada, but to Syria.68
Arar repeatedly and strenuously objected to his removal to Syria, stating that
it was well known that he would be tortured if sent there.69 While State
Department reports at the time consistently found credible evidence that
Syria’s security forces frequently tortured prisoners in custody, Blackman
determined that Arar’s removal to Syria was consistent with the United
Nations Convention Against Torture (the “CAT”),70 which prohibits the
removal of an alien to a country where he or she faces a substantial risk of
torture.71 Arar was sent to New Jersey, where he was placed on a small plane
and flown to Jordan.72 Jordanian authorities delivered him to Syria that same
In Syria, Arar was placed in a “grave” cell measuring six feet long, seven
feet high, and three feet wide.74 The cell was damp, cold, and rat infested.75
Arar was only allowed to bathe once a week with cold water, was “prohibited
from exercising[,] and was provided barely edible food.”76 He lost forty
pounds during his ten-month detention in Syria.77 For the first period in
Syrian detention, he was brutally, physically, and psychologically tortured.78
He was interrogated by the Syrians for eighteen hours per day and asked
strikingly similar questions to those that U.S. officials had asked him in New
York.79 Eventually, after almost a year, Arar was released by the Syrians
without any charges and flown by Canadian officials back to Ottawa.80
Arar’s complaint alleged that U.S. officials deliberately conspired with the
Syrians to intentionally send him from the United States to Syria for the
purpose of being tortured.81 At the time, the Bush administration had a policy
of “extraordinary rendition,” by which suspected terrorists were transferred
to countries that engaged in torture so that these countries could obtain
information about terrorism from them using methods that would be illegal
in the United States.82 Arar alleged that he was subjected to this policy.83
There is no other plausible reason that U.S. officials would send a Canadian
citizen who they suspected was a terrorist not to Canada—an ally in the fight
against terrorism—but instead to Syria, except that high-level U.S. officials
believed that Syria could get information from him using methods that
69. Id. at 585–86.
70. G.A. Res. 39/46 (III), ¶ 1 (Dec. 10, 1984) (“No State Party shall expel, return
(‘refouler’) or extradite a person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture.”).
71. Arar, 585 F.3d. at 586.
75. Id. at 586–87.
76. Id. at 587.
79. Id. Arar alleged that those officials had sent the Syrians a dossier of questions to ask.
80. Id. at 587–88.
81. Id. at 588.
82. See id.; see also Margaret L. Satterthwaite, Rendered Meaningless: Extraordinary
Rendition and the Rule of Law, 75 GEO. WASH. L. REV. 1333, 1335–50 (2007).
83. Arar, 585 F.3d at 588.
neither the United States nor Canada could legally use.84 As Judge
Barrington Parker’s dissenting opinion in the Second Circuit summarized:
Maher Arar credibly alleges that United States officials conspired to ship
him from American soil, where the Constitution and our laws apply, to
Syria, where they do not, so that Syrian agents could torture him at federal
officials’ direction and behest.85
Judge Parker and his dissenting colleagues also found that Arar “credibly
alleges that, to accomplish this unlawful objective, agents of our government
actively obstructed his access to this very Court and the protections
established by Congress.”86 After his initial detention, federal officials
denied Arar’s repeated requests for counsel and to make a phone call.87 His
family, upon finding out about his detention, retained an attorney to represent
him and Arar finally met with his lawyer ten days after he was detained.88
The very next day—a Sunday—federal officials hastily scheduled an
interrogation of Arar at 9:00 p.m., ostensibly to determine whether he had a
legitimate fear of torture if sent to Syria.89 The officials provided no
meaningful advance notice to Arar’s attorney of that meeting, leaving a
voicemail on her office phone earlier that day.90 Moreover, Arar alleged that
the officials had falsely told him that his lawyer had chosen not to
The next day, Arar’s lawyer had two phone calls with INS officers who
falsely informed her that Arar had been taken for processing to an INS office
in Manhattan and that he would eventually be placed in a detention facility
in New Jersey.92 In fact, Arar remained in New York that day, was taken out
of his cell at 4:00 a.m. the next morning, and
served with his “Final Notice of Inadmissibility,” a prerequisite to a petition
for review in federal court, and secretly transported out of the country [to
Jordan and then to Syria]. Defendants never served the order on Arar’s
lawyer, as required by 8 C.F.R. § 292.5(a) (2002), and never informed her
that Arar had been removed to Syria.93
In implementing treaty obligations under the CAT, Congress provided a
means for a person in Arar’s situation to petition a court of appeals to gain
relief from a removal from the United States to a country where there would
be a significant fear that he or she would be tortured.94 But the Arar
defendants affirmatively colluded to prevent Arar from exercising his
statutory right to seek injunctive relief by (
) denying his access to counsel,
) lying to him and his counsel, and (
) only providing him with the requisite
notice hours before he was secretly transferred out of the country.95 If the
Supreme Court was really serious about its pronouncement that a Bivens
remedy is unnecessary when there is some alternative forum to obtain
injunctive or habeas relief,96 Arar should have been provided with the vehicle
to demonstrate that point. Judge Parker, who wrote separately and was joined
by three dissenting colleagues, noted that “[i]f the Constitution ever implied
a damages remedy, this is such a case—where executive officials allegedly
blocked access to the remedies chosen by Congress in order to deliver a man
to known torturers.”97 Indeed, he continued
to emphasize the heightened need for a Bivens remedy in cases such as this
where executive officials have deliberately thwarted the remedies provided
by Congress and obstructed access to the courts. Arar’s claims in this
regard supply an exceptionally compelling justification for affording a
Bivens remedy, going well beyond the allegations that gave rise to Bivens
in the first place.98
In the Arar case, the court held that Congress had spoken affirmatively that
persons facing removal to a country where they might be tortured had a right
to seek judicial relief to enjoin such a removal.99 Yet, executive officials
deliberately thwarted Arar’s right to injunctive relief, not simply by holding
him incommunicado for a period of time but by lying to his lawyer and
deliberately not giving him notice of removal until it was too late to file a
petition.100 The rationale of Ziglar strongly suggests that Arar should have
been entitled to a Bivens claim for damages.
After losing in the Court of Appeals en banc by a seven-to-four vote, Arar
sought Supreme Court review.101 The Court denied his petition for a writ of
certiorari without any comment or dissent.102
Finally, as a postscript, after Arar’s return to Canada, the Canadian
government convened a commission chaired by a prominent judge to
investigate the Arar affair. In September 2006, the commission issued a
three-volume report that fully exonerated Arar.103 Commissioner Dennis
O’Connor importantly concluded, “I am able to say categorically that there
is no evidence to indicate that Mr. Arar has committed any offence or that his
activities constitute a threat to the security of Canada.”104 The Canadian
Parliament unanimously apologized to Arar, as did Canada’s Prime Minister,
and the Canadian government paid him 10.5 million Canadian dollars for its
95. See Arar, 585 F.3d at 584–88.
96. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1862–63 (2017).
97. Arar, 585 F.3d at 611 (Parker, J., dissenting).
98. Id. at 620.
99. Id. at 572–73 (majority opinion).
100. Cf. id. at 585–86 (Sack, J., concurring in part and dissenting in part).
101. Petition for Writ of Certiorari with Appendix, supra note 93, at 2.
102. Arar v. Ashcroft, 560 U.S. 978 (2010) (No. 09-923).
103. See COMM’N OF INQUIRY INTO THE ACTIONS OF CANADIAN OFFICIALS IN RELATION TO
MAHER ARAR, ANALYSIS & RECOMMENDATIONS 361–62 (2006) [hereinafter COMM’N
104. Id. at 59.
role in providing false information about him to U.S. officials.105 The
Canadian government also sent letters to the Syrian and U.S. governments
formally objecting to Arar’s treatment.106 To date, the U.S. government has
not apologized to Arar nor formally recognized any wrongdoing on its part
in his removal to Syria.107
III. OFFICIAL ACCOUNTABILITY FOR
UNCONSTITUTIONAL ACTIONS IN TIME OF CRISIS
For many commentators and dissenting Justices Breyer and Ginsburg, the
Ziglar decision’s key deficiency is that it contradicts the basic premise of
both Bivens and Marbury v. Madison108 that “[t]he very essence of civil
liberty [lies] in the right of every individual to claim the protection of the
laws whenever he receives an injury.”109 Yet, as important as the
overarching maxim that where there is a right there must be some legal
remedy, the most dangerous aspect of Ziglar is its denial of accountability
for officials’ actions that violate the Constitution and are taken in response to
a national emergency or crisis. The key early opinion that Ziglar contradicts
in that respect is not Marbury but Little v. Barreme,110 which was decided by
a unanimous Court one year after the former. Moreover, Ziglar is
inconsistent with the constitutional theory of accountability in times of
national emergency held by not only the early courts but also important
political leaders of the founding generation.111
105. See Ottawa Reaches $10M Settlement with Arar, CBC NEWS (Jan. 25, 2007, 9:06 PM),
106. Arar v. Ashcroft, 585 F.3d 559, 589 (2d Cir. 2009) (en banc) (Sack, J., concurring in
part and dissenting in part). The Commission found that while Canadian officials had provided
false information to U.S. officials about Arar’s purported ties to terrorism, the Canadians were
not complicit in the U.S. officials’ delivery of Arar to Syria. COMM’N REPORT, supra note 103,
107. Press Release, Ctr. for Constitutional Rights, 60,000 People Ask President Obama for
Apology to Torture Victim Maher Arar (May 21, 2012),
108. 5 U.S. (1 Cranch) 137 (1803).
109. Ziglar v. Abbasi, 137 S. Ct. 1843, 1874 (2017) (Breyer, J., dissenting) (quoting
Marbury, 5 U.S. (1 Cranch) at 163); Stephen I. Vladeck, Rights Without Remedies: The
Newfound National Security Exception to Bivens, 28 A.B.A. NAT’L SECURITY L. REP. 1, 4–5
(2006) (commenting on the trends in the courts of appeal even before Ziglar was decided);
Alexander Steven Zbrozek, Square Pegs and Round Holes: Moving Beyond Bivens in
National Security Cases, 47 COLUM. J.L. & SOC. PROBS. 485, 502 (2014) (discussing court of
appeals opinions dismissing national security Bivens actions as “strik[ing] at the heart of
Marbury’s aphorism” that a right must have a remedy); Benjamin C. Zipursky, Ziglar v.
Abbasi and the Decline of the Right to Redress, 86 FORDHAM L. REV. 2167, 2168 (2018)
(“[Bivens] stands for the maxim ubi jus, ibi remedium (where there is a right there is a remedy),
a principle that Justice John Marshall ironically celebrated in Marbury v. Madison . . . . The
near dismissal of Bivens in Ziglar manifests a much larger aspect of where the Supreme Court,
like our legal culture more generally, has gone in its thinking about an individual’s right of
redress.” (footnotes omitted)).
110. 6 U.S. (2 Cranch) 170 (1804).
111. See Jules Lobel, Emergency Power and the Decline of Liberalism, 98 YALE L.J. 1385,
1397–99, 1404–07 (1989).
The predominant constitutional thought of the late eighteenth and early
nineteenth centuries sought to resolve the inherent tension between the rule
of law and the necessity of the government to exercise emergency powers
during national crises by preserving a boundary between normal
constitutional order and the ominous world of crisis government.112
Emergency and the normal constitutional order were counterposed.113
Normalcy permitted a governmental structure based on separation of
powers, respect for civil liberties and the rule of law, while emergencies
required strong executive rule, premised not on law and respect for civil
liberties, but rather on [executive] discretion to take a wide range of actions
to preserve the government.114
As Oliver Cromwell pithily stated before Parliament, “Necessity hath no
The framers as well as nineteenth-century political leaders thus feared
emergency action and saw in foreign crisis the loss of liberty.116 As William
Pitt put it in 1783, “Necessity [is] the plea for every infringement of human
freedom.”117 The framers’ failure to provide for any general emergency rule
or martial law, apart from permitting the federal government to call out the
militia to suppress insurrections and suspend the writ of habeas corpus,
undoubtedly reflects their unwillingness to allow the federal government to
suspend constitutional rights or the rule of law in times of great necessity.118
Nonetheless, early leaders recognized that there were times that
government leaders would need to take actions that were not in accordance
with constitutional principles.119 Their solution was to permit political or
military leaders who believed that a crisis required emergency action to act
unlawfully, extraconstitutionally, or even unconstitutionally, but, if they took
such action, to require them to openly acknowledge the potential
unlawfulness of that action and to be willing to risk the possibility that
Congress and the courts might not ratify it.120 The founding generation thus
attempted to create a strict boundary between constitutional, nonemergency
acts, and unconstitutional acts taken during times of emergency and necessity
but nonetheless unjustified by the law.121
For example, President Thomas Jefferson believed that the Constitution
carefully limited executive emergency power but that a President should
nevertheless act unlawfully when a great pubic necessity required it and
openly acknowledge the illegality and risk public sanction or approval as a
consequence.122 This Jeffersonian dichotomy was illustrated when Jefferson,
confronting the Burr conspiracy123 in 1807, argued that “[o]n great
occasions . . . every good officer must be ready to risk himself in going
beyond the strict line of the law, when the public preservation requires it; his
motives will be a justification.”124
After leaving the presidency, Jefferson was asked whether there are “not
periods when, in free governments, it is necessary for officers in responsible
stations to exercise an authority beyond the law.”125 Jefferson responded:
A strict observance of the written laws is doubtless one of the high duties
of a good citizen, but it is not the highest. The laws of necessity, of
selfpreservation, of saving our country when in danger, are of higher
The officer who is called to act on this superior ground, does indeed risk
himself on the justice of the controlling powers of the [C]onstitution, and
his station makes it his duty to incur that risk.
The line of discrimination between cases may be difficult; but the good
officer is bound to draw it at his own peril, and throw himself on the justice
of his country and the rectitude of his motives.126
The role of the courts under this theoretical framework is therefore to
determine in individual cases whether executive officials have exceeded their
constitutional powers in wartime or national emergencies and to assess fines
or damages, which Congress may later indemnify. The Supreme Court’s
decision in Barreme is the best example of Jefferson’s principle applied in
In Barreme, a unanimous Court upheld the imposition of individual
liability on a naval commander for his violation of a congressional statute
during wartime, even though he had acted pursuant to a presidential order.128
The statute at issue, enacted during the United States’ 1790s quasi-war with
France, provided for the seizure of American vessels that were “bound or
sailing to” French ports.129 The Adams administration, apparently believing
that the constrictive statute would allow American shipping to evade its
prohibitions, issued instructions to naval commanders to seize ostensibly
neutral ships they determined to be American that were “bound to or from
French ports.”130 Captain Little, believing that The Flying-Fish, a Danish
vessel, was an American ship traveling from a French port, captured the ship
and brought it into an American port to be salvaged as a prize of war.131
Chief Justice John Marshall, writing for a unanimous Court, sympathized
with the administration’s instructions to its naval commanders, noting that
the instructions were designed to avoid evasions of the Act and that they
provided a “construction [of the statute] much better calculated to give it
effect.”132 Nonetheless, the instructions violated the express language of the
Act and were therefore unlawful even though issued by the Commander in
Chief during a military conflict.133 Captain Little’s seizure of The
FlyingFish was therefore unlawful even if he had legitimate reason to believe that
it was an American ship because it was indisputably sailing from, rather than
to, France.134 The question then became whether to impose individual
liability for damages on Captain Little.135
Marshall held that Little must be answerable in damages to the owner of
the vessel, noting:
I confess the first bias of my mind was very strong in favour of the opinion
that though the instructions of the executive could not give a right, they
might yet excuse from damages. I was much inclined to think that a
distinction ought to be taken between acts of civil and those of military
officers; and between proceedings within the body of the country and those
on the high seas. That implicit obedience which military men usually pay
to the orders of their superiors, which indeed is indispensably necessary to
every military system, appeared to me strongly to imply the principle that
those orders, if not to perform a prohibited act, ought to justify the person
whose general duty it is to obey them, and who is placed by the laws of his
country in a situation which in general requires that he should obey them.
I was strongly inclined to think that where, in consequence of orders from
127. See Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804).
128. Id. at 179.
129. Act of June 13, 1798, ch. 53, 1 Stat. 565.
130. Barreme, 6 U.S. (2 Cranch) at 178.
131. Id. at 170.
132. Id. at 178.
133. Id. at 179.
134. See id. at 178.
135. Id. at 178–79.
the legitimate authority, a vessel is seized with pure intention, the claim of
the injured party for damages would be against that government from which
the orders proceeded, and would be a proper subject for negotiation. But I
have been convinced that I was mistaken, and I have receded from this first
opinion. I acquiesce in that of my brethren, which is that the instructions
cannot change the nature of the transaction or legalize an act which without
those instructions would have been a plain trespass.136
Barreme was not a unique case; in numerous other cases the Court held
military commanders or other federal officers liable in damages for unlawful
seizures or trespasses.137 For example, in The Apollon,138 Justice Joseph
Story, writing for a unanimous Court, assessed damages against an official
of the seizure of a ship and cargo motivated by perceived necessity:
It may be fit and proper for the government, in the exercise of the high
discretion confided to the executive, for great public purposes, to act on a
sudden emergency, or to prevent an irreparable mischief, by summary
measures, which are not found in the text of the laws. Such measures are
properly matters of state, and if the responsibility is taken, under justifiable
circumstances, the Legislature will doubtless apply a proper indemnity.
But this Court can only look to the questions, whether the laws have been
violated; and if they were, justice demands, that the injured party should
receive a suitable redress.139
Similarly, in Mitchell v. Harmony140 the Supreme Court upheld a damages
award against a commander for the improper seizure of property during the
Mexican War, ruling that the jury had properly determined that an emergency
did not exist at the time of the officer’s actions, even though the officer
believed such an emergency existed.141
The most politically prominent judicial application of Jefferson’s theory
of emergency power came in the aftermath of General Andrew Jackson’s
victory in 1815 over the British during the War of 1812 at New Orleans.
When Jackson’s activities under martial law were challenged in a federal
contempt proceeding, he justified his actions by citing Jefferson’s view that
necessity “may in some cases . . . justify a departure from the
[C]onstitution.”142 President Madison, relieved that Jackson based his
defense on necessity, observed that even though a suspension of liberties
“may be justified by the law of necessity,” a commander “cannot resort to the
established law of the land, for the means of vindication.”143 The federal
court held Jackson’s actions to be unlawful and fined him $1000.144
In many of these cases, Congress eventually indemnified the officials who
had been required to pay damages for their unlawful actions.145 For example,
Congress indemnified Captain Little several years after the Court’s decision
because his unlawful actions had aided the nation during wartime.146
Congress also indemnified Captain Murray for the damages he was forced to
pay as a result of his unlawful seizure of the schooner Exchange during the
quasi-war with France.147 Finally, almost thirty years after Jackson was fined
for contempt, Congress enacted legislation to repay Jackson the principal and
interest on the fine.148
Barreme and other similar cases from the early period of the Republic
demonstrate that Justice Kennedy’s opinion in Ziglar is at odds with the basic
precepts of the framers’ view of the judicial role in addressing official claims
of necessity during serious crises.149 The Ziglar Court’s position that
qualified immunity was insufficient to protect federal officials from actions
they take in times of crisis cannot be reconciled with the framers’ view of the
doctrine.150 Further, permitting any risk that an official might face from a
damages action—even for violating rights clearly established by the
Constitution—would cause officials to unacceptably second-guess and
possibly avoid taking difficult but arguably necessary actions to protect
national security. This, too, is simply inconsistent with the views of Justice
Marshall, Justice Story, and their brethren at the country’s founding.151
In fact, Jefferson and Madison’s perspective was the exact opposite of
Kennedy’s: they believed that if officials took potentially unconstitutional
action in the face of a grave emergency, they should only do so with the
recognition that they might face a damages action or other serious
consequences for unlawful conduct unless Congress either indemnifies or
ratifies their action.152 For it is the recognition of that risk that provides some
accountability and caution on the part of political leaders in taking
unconstitutional actions. Jefferson’s perspective does not merely focus on
the individual’s right to a remedy but on ensuring that, when political or
military commanders violate the law in taking actions that they believe
necessity demands, such decisions are only made with the check that a legal
violation brings with it personal risk and peril.153
Unfortunately, the abdication of postaction accountability for emergency
decisions extends beyond the judiciary. One of the Obama administration’s
first actions upon taking office was to prohibit the future use of torture,
including measures such as waterboarding.154 Nonetheless, the Obama
administration refused to criminally prosecute federal agents who, following
Bush administration policy, used such methods in the interrogation of terror
suspects.155 Moreover, the Obama administration consistently argued in
federal court that officials who committed such actions could not be held
accountable, even in a damages action in federal court.156 The Obama
administration, as well as the courts, thus refused to demand accountability
for these abuses, arguing that changing the rule for the future negated the
need for looking backward to address prior misconduct. The problem with
this argument is that one of the most powerful means of ensuring future
adherence to the constitutional and legal rule prohibiting torture is to ensure
that officials who consider violating that norm under the guise of emergency
clearly understand that they are taking a personal risk in doing so.
It is the judiciary’s role under checks and balances—and not simply its
ability to provide a remedy for the violation of a right—that provides the most
compelling reason that Ziglar is wrong. For it is the assurance that future
officials will address emergencies with a recognition that they face personal
risks for violating the law, and not—as Nixon once famously said—that
presidential national security orders are per se constitutional,157 that will
make our country and Constitution safer.
1. 137 S. Ct . 1843 ( 2017 ).
2. Id. at 1853- 54 .
3. Justices Sotomayor and Kagan recused themselves, and Justice Gorsuch did not participate in the case, leaving only six Justices to hear the case . Id. at 1851 .
4. See generally Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 ( 1999 ).
5. U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized .”).
6. U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted .”).
8. Ziglar , 137 S. Ct . at 1884 (Breyer , J., dissenting) (emphasis added).
9. 553 U.S. 723 ( 2008 ).
10. Id . at 771.
11. See , e.g., id.; Hamdi v. Rumsfeld , 542 U.S. 507 , 533 , 539 ( 2004 ).
12. Ziglar , 137 S. Ct . at 1861 .
13. Id . at 1863- 65 .
14. Boumediene v. Bush , 553 U.S. 723 ( 2008 ); Little v . Barreme , 6 U.S. (2 Cranch) 170 ( 1804 ).
22. Id . (quoting Stanley, 483 U.S. at 683).
23. Boumediene v. Bush , 553 U.S. 723 , 826 - 27 ( 2008 ) (Scalia , J., dissenting); David D. Cole, Rights over Borders: Transnational Constitutionalism and Guantanamo Bay, 2008 CATO SUP . CT. REV . 47 , 47 - 48 .
24. See Linda Greenhouse, Justices, 5 - 4 , Back Detainee Appeals for Guantánamo, N.Y. TIMES (June 13, 2008 ), http://www.nytimes.com/ 2008 /06/13/washington/13scotus.html [https://perma.cc/VHG5-RTVC].
25. Ziglar , 137 S. Ct . at 1861 .
26. Id .
27. Id . at 1862- 63 .
28. Id . at 1863 .
29. See generally Andrew Kent, Are Damages Different?: Bivens and National Security , 87 S. CAL. L. REV . 1123 ( 2014 ).
30. Id . at 1158 n.149.
31. Ziglar , 137 S. Ct . at 1884; see also WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 218-25 ( 1998 ). See generally Korematsu v . United States , 323 U.S. 214 ( 1944 ).
32. See RANDY E. BARNETT & JOSH BLACKMAN , CONSTITUTIONAL STRUCTURE : CASES IN CONTEXT 626 (2d ed. 2018 ) (stating that “[c]omplaints seeking [injunctive remedies or writs of habeas corpus] relief typically come during the emergency itself, when emotions are strong”).
33. Ziglar , 137 S. Ct . at 1884 (Breyer , J., dissenting).
34. Harlow v. Fitzgerald , 457 U.S. 800 , 818 ( 1982 ).
35. See , e.g., El-Masri v . United States , 479 F.3d 296 , 311 - 13 ( 4th Cir . 2007 ).
36. 556 U.S. 662 ( 2009 ).
37. Id . at 678.
38. Ziglar , 137 S. Ct . at 1863 (majority opinion).
112. See id. at 1388-92.
113. Id . at 1388.
114. Id .
115. Max Radin , Martial Law of the State of Siege , 30 CALIF. L. REV. 634 , 640 ( 1942 ) (quoting Oliver Cromwell) .
116. See ARTHUR M. SCHLESINGER , JR., THE IMPERIAL PRESIDENCY , at ix ( 1973 ) (“Perhaps it is a universal truth . . . that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.” (quoting James Madison, Letter from James Madison to Thomas Jefferson (May 13, 1798), in THE COMPLETE MADISON 258 (S.K . Padover ed., 1953 )) ); THE FEDERALIST NO. 8, at 114 (Alexander Hamilton) (Isaac Kramnick ed ., 1987 ) (“Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates .”).
117. 1 SPEECHES OF THE RIGHT HONOURABLE WILLIAM PITT, IN THE HOUSE OF COMMONS 91 (W .S. Hathaway ed., 1806 ).
118. Ex parte Milligan, 71 U.S. ( 4 Wall. ) 2 , 126 ( 1866 ) (viewing the absence of any provision in the Constitution providing for a general suspension of rights as indicating that the framers had limited the power of “suspension to one great right [(habeas corpus)], and left the rest to remain forever inviolable”); see also id . at 120-21 ( stating that the Constitution works “equally in war and in peace” and protects “all classes of men, at all times, and under all circumstances”); id . at 121 (“ No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of [the Constitution's] provisions can be suspended during any of the great exigencies of government .”).
119. Lobel , supra note 111, at 1392-97.
120. Id . at 1392.
121. Id .
122. SCHLESINGER, supra note 116, at 24.
123. For a discussion of the Burr conspiracy, a suspected secession plot allegedly inspired by Aaron Burr, see BRIAN F. CARSO, JR ., “WHOM CAN WE TRUST NOW ?”: THE MEANING OF TREASON IN THE UNITED STATES FROM THE REVOLUTION THROUGH THE CIVIL WAR 96- 105 ( 2006 ).
124. SCHLESINGER, supra note 116, at 24.
125. Lucius Wilmerding , Jr., The President and the Law, 67 POL. SCI. Q . 321 , 328 ( 1952 ) (quoting Letter from Thomas Jefferson to John B . Colvin (Sept. 20 , 1810 )).
126. Letter from Thomas Jefferson to John B. Colvin (Sept. 20 , 1810 ), in 11 THE WORKS OF THOMAS JEFFERSON 146 , 148 - 49 (Paul Leicester Ford ed., 1905 ). Other early leaders generally supported Jefferson's position on emergency power . Wilmerding, supra note 125 , at 322-27.
136. Id . at 179.
137. Murray v. Schooner Charming Betsy , 6 U.S. (2 Cranch) 64 , 125 ( 1804 ) (affirming a commander's liability for the unlawful seizure of a ship); James E . Pfander & Jonathan L. Hunt , Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic , 85 N.Y. U. L. REV . 1862 , 1904 - 05 ( 2010 ) (finding sixty-eight instances between 1789 and 1860 in which federal officials were found liable and were forced to pay damages for seizures or trespass in either military or civilian contexts).
138. 22 U.S. ( 9 Wheat.) 362 ( 1824 ).
139. Id . at 366-67.
140. 54 U.S. ( 13 How.) 115 ( 1851 ).
141. Id . at 133-35.
142. Abraham D. Sofaer , Emergency Power and the Hero of New Orleans , 2 CARDOZO L. REV . 233 , 245 ( 1981 ).
143. Id . at 249 (quoting 2 CORRESPONDENCE OF ANDREW JACKSON 211-13 (J . Basset ed., 1927 )).
144. Id . at 250.
145. Pfander & Hunt, supra note 137, at 1905 (finding congressional indemnification in roughly 60 percent of such cases).
146. Wilmerding , supra note 125, at 324 n. 6; see also Act for the Relief of George Little , ch. 4 , 6 Stat. 63 ( 1807 ) (setting forth payment of money from the U.S. Treasury to satisfy the judgment in the case of The Flying-Fish) .
147. Act for the Relief of Alexander Murray, ch . 12 , 6 Stat. 56 ( 1805 ).
148. Act to Refund the Fine Imposed on General Andrew Jackson, ch. 2 , 5 Stat. 651 ( 1844 ); see also Sofaer, supra note 142 , at 251.
149. See supra Part III.
150. See supra notes 112-26 , 143 and accompanying text.
151. See supra notes 136 , 139 and accompanying text.
152. See supra notes 126 , 136 and accompanying text.
153. See supra note 126 and accompanying text .
154. Transcript of News Conference, President Barack Obama (Apr. 29 , 2009 ), https://obamawhitehouse.archives.gov/the-press-office/news-conference-president- 4292009 [https://perma.cc/JGS9-VZPF].
155. Press Release, Dep't of Justice, Attorney General Eric Holder Regarding a Preliminary Review into the Interrogation of Certain Detainees (Aug . 24, 2009 ), https://www.justice.gov/ opa/speech/attorney-general -eric-holder-regarding-preliminary-review-interrogation-certaindetainees [https://perma .cc/ZZ2F-7C59].
156. See , e.g., Alexandra A. Reinert , The Influence of Government Defenders on Affirmative Civil Rights Enforcement , 86 FORDHAM L. REV. 2181 , 2186 ( 2018 ).
157. In an interview with David Frost on April 6, 1977, the former President stated, “[if] the President does it, that means that it is not illegal.” Excerpts from Interview with Nixon About Domestic Effects of Indochina War , N.Y. TIMES , May 20 , 1977 , at A16.