Of all George W. Bush's nominees to the 9th U.S. Circuit Court of Appeals, Judge Milan Smith Jr. is definitely making a bid for most moderate.
Smith drew a torrent of opposition from Republican-appointed colleagues over his decision last year to allow a suit against John Ashcroft to go forward. The case, brought by a Muslim American who claims the Justice Department abused a material witness statute to lock him up, drew a call for en banc review, which failed.
Eight 9th Circuit judges dissented Thursday. But Smith fought back, simultaneously issuing a rare concurrence to the denial of en banc review.
"However well-motivated Ashcroft's intentions may have been in creating, authorizing, supervising and enforcing the misuse of the material witness statute in contravention of the Fourth Amendment," Smith wrote, "his motivation does not presumptively immunize the policy, or himself, the nation's chief law enforcement officer, and others implementing and executing it, from complying with the rule of law."
Smith, a Los Angeles business litigator before joining the court, has established himself as pro-corporate but socially moderate. He led an effort making it harder to challenge logging plans on environmental grounds -- long a sore spot for conservatives in the Pacific Northwest -- but sided with liberals in a strip-search case involving a young girl at school, which the U.S. Supreme Court ultimately affirmed.
The plaintiff in the Ashcroft case, Abdullah al-Kidd (born Lavoni Kidd) was a running back for the University of Idaho Vandals who converted to Islam and changed his name. In 2003, the FBI arrested al-Kidd at Dulles International Airport in Washington, D.C., as he was preparing to travel to Saudi Arabia to study Arabic and Islamic law.
According to his lawsuit, the FBI had submitted an affidavit seeking al-Kidd's arrest, citing his alleged connections with another individual and claiming, incorrectly, that al-Kidd had purchased a one-way, first-class plane ticket to Saudi Arabia. The affidavit did not disclose that he, his wife, his parents and his two children were U.S. citizens, nor did it note that he had cooperated with the FBI previously. Smith noted the government held al-Kidd in three prisons over 16 days, then took his passport and imposed restrictions on his movements for another year and a half.
Smith and Judge David Thompson greenlighted the suit, while Judge Carlos Bea dissented.
In the dissent to denial of en banc review, Judge Diarmuid O'Scannlain complained that Smith's decision invalidates the material witness statute, a 200-year old law. And he feared the ramifications of personal liability for Ashcroft.
"One shudders at the thought that this decision might deter the incumbent and future attorneys general from exercising the full range of their lawful authority to protect the security of the United States," he wrote in al-Kidd v. Ashcroft, 06-36059.
Judge Ronald Gould, a Clinton appointee, goes further in a separate dissent, fretting that the opinion may make it harder to attract qualified attorneys general. To this, Smith scoffed, saying the government has paid all of Ashcroft's attorneys fees to date, and would likely indemnify him if he lost.
"The truth is that there are legions of highly qualified attorneys who would gladly abandon almost any other position for the opportunity to serve as attorney general of the United States," Smith wrote. "But it is critically important that whoever serves in that position be dedicated to the rule of law, and to upholding and defending the Constitution of the United States."
Joining O'Scannlain were Gould and Chief Judge Alex Kozkinsi, along with Judges Andrew Kleinfeld, Richard Tallman, Consuelo Callahan, Bea and Sandra Ikuta. Everyone but Tallman also joined Gould.