Access to Justice; National Security Law; Criminal Law; Fourth Amendment; Eighth Amendment; Detention; Damages; Constitutional Law; Injunctive Relief; Criminal Procedure; Executive Branch


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.


Law; Criminal Law; Criminal Procedure; Supreme Court of the United States; Constitutional Law; Fourth Amendment; Legal Remedies; President/Exeuctive Department