- The Washington Times - Monday, April 3, 2006

A split Supreme Court yesterday rejected an appeal by terror suspect Jose Padilla, sidestepping a challenge to the Bush administration’s use of the “enemy combatant” designation to detain a U.S. citizen indefinitely.

The refusal marks the latest in a quagmire of legal developments in the case of Padilla, a former Chicago gang member initially described as a “dirty bomb” plotter, who was placed in military custody for three years before being charged in a Miami federal court.

Chief Justice John G. Roberts Jr. and Justices John Paul Stevens and Anthony M. Kennedy issued a brief opinion yesterday, saying there were “strong prudential considerations” requiring the high court to reject Padilla’s appeal.

“Even if the Court were to rule in Padilla’s favor, his present custody status would be unaffected,” Justice Kennedy wrote for the others.

Padilla originally challenged the legality of his open-ended military detention in 2004, two years after his arrest. The high court granted a review but opted not to rule, saying he had filed the challenge in the wrong federal court.

As Padilla’s next challenge moved through the courts, the Bush administration filed federal criminal charges against him in November. It then said his Supreme Court challenge ought to be moot because he is no longer considered an “enemy combatant.”

Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer argued that the high court was making a mistake by not taking the case.

In a short opinion, Justice Ginsburg said the case raises the question of “Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an ‘enemy combatant?’”

“It is a question the Court heard, and should have decided, two years ago,” she said. “Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.”

Noting an unusual loophole that allows people to seek reprieve directly from the justices regardless of lower-court proceedings, Justice Kennedy said Padilla still had the option of filing a separate appeal seeking a writ of habeas corpus in the Supreme Court.

Donna R. Newman, a defense attorney for Padilla, said the high court’s rejection of the case was not a complete loss. She said the court “put the government on a very short leash” by highlighting the habeas option.

Padilla’s case has made headlines repeatedly since his 2002 arrest, when Attorney General John Ashcroft described him as a “known terrorist who was exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,’ in the United States.”

The federal court charges against Padilla last year drew scrutiny for falling notably short of the accusations made publicly against him. The words “dirty bomb” do not appear in the indictment, unsealed in January in U.S. District Court in Miami, nor does any specific mention of al Qaeda.

Instead, the indictment speaks of Padilla’s involvement in a North American terrorist “support cell.”

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