A Failed Attempt at Justifying Activism

In justifying his decision to allow terrorist Jose Padilla to sue Bush administration lawyer for drafting ‘torture’ policies, Judge Jeffery White misses the point

By Jeff Schreiber & Rick Saunders
America’s Right

Here at America’s Right, we have issues with a federal judge.

In denying the motion to dismiss the civil complaint filed by “dirty bomb” terrorist Jose Padilla (a.k.a. Abdullah al-Muhajir) against former Bush administration attorney John Yoo, the Hon. Jeffery White of San Francisco took a portion of Alexander Hamilton’s writings in Federalist No. 8 out of context, and used it to dramatically support his opinion.

White began his lengthy, 42-page opinion as follows:

[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

–The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).

The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect.

Far be it for us to challenge Judge White on the precedent he used to support his opinion; neither of us look particularly good in black robes, nor do we have either the talent or the time to fake it necessary to go toe-to-toe with him on his decision, but we can certainly explain how the melodramatic start to his opinion actually works against the decision detailed in the rest of the 41 pages and change.

Federalist No. 8 arose from Alexander Hamilton’s worry regarding possible adverse consequences stemming from war and hostilities between the several States. In it, the champion of a powerful centralized government warned against possible disunion, worried that “the populous States would, with little difficulty, overrun their less populous neighbors.”

The statement cited by Judge White was fairly on point, as it describes how Hamilton felt as though a stronger union was necessary for safety and security reasons, but warned of how such protection comes with the cost of eroded freedoms. In that, White was right to cite the tension between requirements of war and defense of freedom.

In many ways, however, it seems that the judge was looking more to evoke Benjamin Franklin’s famous statement, that “those willing to give up liberty to gain security will deserve neither and lose both,” because in the context of the Padilla case, the Federalist quote does his opinion little good.

Take a look at the full excerpt:

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. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

The problem with White’s use of this particular statement is that, while he may consider himself to be preserving Jose Padilla’s liberty in the face of any security threat Padilla may pose, the real threat to this nation’s security is the judge’s decision itself.

In saying that “[t]his lawsuit poses the question addressed by our founding fathers about how to strike the proper balance of fighting a war against terror, at home and abroad, and fighting a war using tactics of terror,” it looks to me as though Judge White was addressing the issue of torture and other enhanced interrogation techniques rather than addressing whether former Justice Department officials should be on the hook for drafting the legal policies justifying them as lawful.

By stating that “[l]ike any other government official, government lawyers are responsible for the foreseeable consequences of their conduct,” White has already decided that enhanced interrogation techniques are absolutely unlawful, and that Yoo should have known that, down the road, a liberal administration with a toothless, detente-at-all-costs foreign policy would have considered it as such.

White is holding Yoo accountable for his determination on the law, not even as it stood at the point in time where the policies were drafted, but rather as it could possibly stand in the future. By that very same logic, if Judge White himself were overturned on one decision or another by the Ninth Circuit Court of Appeals, he should therefore be personally liable for any harm or damage caused by his own ill-conceived legal opinion.

Not only has the Hon. Jeffery White, a Bush 43 appointee no less, opened a dangerous can of worms, he has first manufactured from “whole tin” the can of worms itself–and one that finds no support in Federalist No. 8–in order to accomplish the activist result he deems necessary. Indeed, White perverts the very core of Federalist No. 8 by turning its premise–that standing armies were necessary to preserve the nascent republic from external attack arising from the dissolution of the confederacy–on its head in order to reverse-engineer the result he wants: the exposure of Yoo to prosecution for being complicit in the defense of the nation against a global terrorist threat. This, of course, is a tactic typifying the modus operandi of what has now become the nation’s imperial judiciary.

Jurists like White–and, parenthetically, Senators before whom come executive nominees for high judicial office–should read other portions of The Federalist Papers, starting with Federalist No. 78. Among other components of that blueprint for the republic, it is there noted that the belief and intent of the Framers was that, through the separation of powers, “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them.” Brilliant as the Framers were, they apparently had not contemplated the “hope” and “change” that sulked in the republic’s future under the Obama regime.

A more forceful statement of intent by the Founding Fathers regarding limitations on judicial activism in Federalist No. 78 would be difficult to conceive. And yet, a more radical departure from that intent by “tortured” decisions of activist judges as is today seen in the federal judiciary–including judicial nominees possessed of “rich heritages of empathetic experiences” and a talent for “setting policy” from the bench–would be even more difficult to structure.

Lamentably, both circumstances are now upon us.

And, for what it’s worth, while the papers of Publius are still open for perusal, it certainly wouldn’t hurt if more people would re-familiarize themselves–especially since January 20, 2009–with Federalist Nos. 67, 68 and 69, addressing the importance of establishing and maintaining a constitutional republic, and not a monarchy.

Rick Saunders is a freelance writer who splits his time between endeavors in southern California and the American southwest. He began writing for America’s Right in December 2008. Jeff Schreiber established America’s Right in January 2008.



  1. Gail B says:

    Well, I'm in awe of your legal interpretations of legal opinions. I know how to look up the laws, but y'all are wonderful in the part where it counts–recognizing where the judge(s) screwed up!

  2. Rix says:

    Until conservative politicians are willing openly declare that they will be considering an indictment against Hon. White for this particular verdict were Jose Padilla to cause any future harm to the USA or its citizens, they are fighting a very lost battle. Being a good sport with the enemy that pulls no punches – and of the fact that liberals are the enemy, I have no doubt – usually means being a loser.

  3. Repack Rider says:

    Huzzah for a judge who upholds the Constitution. Padilla is a United States citizen, entitled to all the same protections as Tim McVeigh and Charlie Manson, both heinous criminals who were not tortured, and received fair, public trials in accordance with the rights held by every citizen accused of a crime.

    I'm an Army vet, and I had to swear an oath to defend the Constitution. I'm glad I'm not alone.

    Except here.

    You guys should enlist, so you would be bound by the same oath.

  4. Anonymous says:

    Let me guess, "Repack Rider"; you have more confidence in Obama than you did Bush to defend the Constitution? I would be greatly interested to know what basis you have for comming to that conclusion? Would you share that with the rest of us?

    I'd like to be able to check back with you in another eight years to see if your confidence was justified. Unfortunately, there is little chance that I'll still be around then, so it's not me that I'm worried about as I, and the rest of the world, watches in amazement as Obama "remakes" America; it's my sons, my grandchildren, and my great-grandchild who I fear will never know the America that I had the privilege of growing up in. (And by the way, that privilege included offering up my life to serve in the military when called.)

    My bet is that if we allow the Obama administration to continue on the path that it is currently on, by then the Constitution will have been supplanted by some U.N. treaty and we'll be governed by a new world organization.

    Huzzah to "The One" who, though the dazzling power of his personality, seeks to claim the role of the true Messiah of the Scripture.

    Old Bob

Speak Your Mind