Liability in national security matters hinges on curbing both official myopia and hindsight bias. The Framers knew that officials could be short-sighted, prioritizing expedience over abiding values. Judicial review emerged as an antidote to myopia of this kind. However, the Framers recognized that ubiquitous second-guessing of government decisions would also breed instability. Balancing these conflicting impulses has produced judicial oscillation between intervention and deference. Recent decisions on Bivens claims in the war on terror have defined extremes of deference or intervention. Cases like Ashcroft v. Iqbal and Arar v. Ashcroft display a categorical deference that rewards officials' myopia. On the other hand, courts in Padilla v. Yoo and al-Kidd v. Ashcroft manifest an equally categorical interventionism that institutionalizes hindsight bias. To break with the categorical cast of both deferential and interventionist decisions, this Article proposes an innovation-eliciting approach. Inspired by remedies for cognitive bias and regulatory failure, it gives officials a stake in developing alternatives to both overreaching and abdication. Officials who can demonstrate they have implemented alternatives in other contexts that are both proportional and proximate in time to the instant case buy flexibility and dismissal of the lawsuit before the qualified immunity phase. By leveraging officials' experiences and expertise, the innovation-eliciting approach tames the "pendular swings" in policy that Justice Kennedy in Boumediene v. Bush viewed as undermining both liberty and security.
Peter Margulies, Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law, 96 Iowa L. Rev. 195, 248 (2010)