«
»

I blogged my reaction to the panel opinion, on the constitutionality of material witness detention for terrorism purposes, here: al-Kidd v. Ashcroft: Is Pretextual Use of the Material Witness Statute Unconstitutional?:. The opinions concerning the denial of rehearing are here. I think there’s a good chance the Supreme Court would agree to hear this case. Stay tuned.

Categories: War on Terror    

    7 Comments

    1. ruuffles says:

      Judge Bybee was recused in this matter.

      ::golf clap::

      March 18, 2010, 6:58 pm

    2. Andrew says:

      That’s a lot of dissenting judges saying, “such conclusion is preposterous.” Orin was a bit more soft-spoken about it, but I agree with Orin and the dissenters on this one.

      March 18, 2010, 7:23 pm

    3. Jay says:

      Some in another thread suggested (rightly, I think) that Judges Griffin and Brown on the DC Circuit have proven less conservative than expected, but surely Milan Smith takes the cake for liberals’ favorite GWB circuit judge. I don’t think I’ve seen him on the “conservative” side of a 9th Circuit split since he signed up.

      March 18, 2010, 11:37 pm

    4. DNJ says:

      Jay: Some in another thread suggested (rightly, I think) that Judges Griffin and Brown on the DC Circuit have proven less conservative than expected, but surely Milan Smith takes the cake for liberals’ favorite GWB circuit judge.I don’t think I’ve seen him on the “conservative” side of a 9th Circuit split since he signed up.

      I can think of a number of other quite liberal GWB-appointed Circuit Judges, including Judge Ed Prado of the 5th Circuit, and Judges Michael Melloy and Lavenski Smith of the 8th Circuit. Judge N. Randy Smith of the 9th Circuit is also quite moderate. I have seen Milan Smith on the conservative side in splits, and in fact I have seen him get quite impatient (in opinions) with what he clearly sees as liberal activism ; I would describe him as a moderate.

      March 19, 2010, 2:05 am

    5. DNJ says:

      Judge Debra Livingston of the 2nd Circuit is also quite moderate. But, on reflection, the most liberal GWB Circuit nominees would have to be Judge Barrington Parker of the 2nd Circuit, Judge Roger Gregory of the 4th Circuit, and Judge Helene White of the 6th Circuit. Of course they are all Democrats nominated as part of a deal or to encourage the Senate to confirm more of his other nominees.

      March 19, 2010, 2:10 am

    6. Andrew says:

      It was a bit disconcerting to see Judge O’Scannlain’s reference to a newspaper editorial. Is the Washington Post now a source of law? At least if newspapers are going to be cited, cite blog comments too!

      By the same token, I thought Judge Smith’s opinion had a lot of irrelevant stuff in it too. Consider these two quotes, for example:

      All the officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.

      And:

      The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

      Everyone agrees with generalities such as these, so why bloat up the opinion with them? The fact that no one is above the law cannot justify punishing high officials merely for the sake of proving that it can be done. And the fact that well-meaning zealots are dangerous is no justification for punishing an alleged zealot who has not violated specific provisions of law.

      So, I think these opinions could have benefited from a little less verbosity.

      March 19, 2010, 2:33 am

    7. Jimmy says:

      You gave fantastic honest ideas here. I performed a research on the issue and discovered almost all peoples will agree with your blog.

      April 3, 2010, 11:15 am