Judge Jeffrey White

The decision by U.S. District Judge Jeffrey S. White of San Francisco was the more dramatic since it allows Jose Padilla, who has been convicted of terrorism conspiracy charges, to proceed with a novel civil rights suit over the abusive conditions of his detention as an “enemy combatant” in a military brig from June 2002 to March 2004.

“The issues raised by this case embody [the tension] between the requirements of war and the defense of the very freedoms that war seeks to protect,” White noted.

Padilla sued former administration lawyer John Yoo, who helped create the “enemy combatant” designation so suspects in the “war on terror” would have neither the rights of criminal defendants nor of prisoners of war.

Many commentators didn't think Padilla had a chance of holding Yoo liable, with the Wall Street Journal calling the suit a “political stunt.” Government lawyers usually enjoy immunity for actions taken on their clients' behalf and the Department of Justice, representing Yoo, said “the President’s ability to obtain candid legal counsel” was at stake.

But White said that “government lawyers are responsible for the foreseeable consequences of their conduct” and Padilla “has alleged sufficient facts to satisfy the requirement that Yoo set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.”

“The specific designation as an enemy combatant does not automatically eviscerate all of the   constitutional protections afforded to a citizen of the United States,” he ruled in denying Yoo's motion to dismiss.

In the lawsuit related to AIG, Senior U.S. District Judge Lawrence P. Zatkoff considered the constitutionality of the government's bailout of the giant insurer. A Michigan taxpayer, Kevin Murray, brought the case under the Establishment Clause, citing AIG's marketing of insurance products which comply with Islamic or “Sharia” law.

“The circumstances of this case are historic, and the pressure upon the government to navigate this financial crisis is unfathomable,” Zatkoff said. “Times of crisis, however, do not justify departure from the Constitution.”

Denying the government's motion to dismiss, he noted that at least two AIG subsidiaries “practice Sharia-compliant financing” and that “after the government acquired a majority interest in AIG and contributed substantial funds to AIG for operational purposes, the government co-sponsored a forum entitled 'Islamic Finance 101.'”

Such facts, Zatkoff concluded in a May 26 ruling, “raise a question of whether the government’s involvement with AIG has created the effect of promoting [the Islamic] religion and sufficiently raise Plaintiff’s claim beyond the speculative level, warranting dismissal inappropriate at this stage in the proceedings.”

White was appointed to the federal bench in 2002 by George W. Bush while another Republican president, Ronald Reagan, appointed Zatkoff in 1986.

By Matthew Heller
6/15/09