Court showdown over "enemy combatant" averted

WASHINGTON — A potential showdown between the Supreme Court and the Bush administration over the president's war powers was averted Monday when the court declined to hear the appeal of a U.S. citizen who was held in military custody for more than three years.

By a 6-3 vote, the court granted the administration's request not to review the case of Jose Padilla, an alleged member of al-Qaida arrested in Chicago in 2002, because the administration last November met Padilla's demand to be indicted in a civilian court and transferred from a Navy brig to a civilian jail.

That made consideration of his rights "hypothetical," according to an opinion signed by three of the justices in the majority.

The decision is a victory for the administration because it left intact an appeals-court ruling that had upheld the president's authority to detain Padilla as an "enemy combatant." But the win was possible only because the administration had already made its tactical retreat in the face of negative public reaction and uncertain prospects at the high court, legal analysts said.

Until a definitive Supreme Court ruling, they said, it remains an open question whether President Bush could legally detain a U.S. citizen in the United States as an enemy combatant in the future.

"It's a victory for the government in a narrow sense, because their strategy was to keep the Supreme Court out," said Joseph Onek, senior counsel of the Constitution Project, which backed Padilla. "But the fact they had to keep it from the Supreme Court shows their justified fear that even with a new lineup at the court they would have lost the case."

Richard Samp, chief counsel of the Washington Legal Foundation, which supported the administration, said: "If you had to pick winners and losers, you'd say the government won and Padilla lost."

"But it's not black and white."

Padilla's case represented one of the most aggressive assertions of presidential authority by the Bush administration since Sept. 11, 2001. Arrested at Chicago's O'Hare International Airport on May 8, 2002, Padilla was first held as a material witness, then designated an enemy combatant and sent to a South Carolina brig.

Then-Attorney General John Ashcroft said that Padilla, a former Chicago gang member who converted to Islam in prison and had been to al-Qaida camps in Afghanistan, was plotting to detonate a radioactive "dirty bomb" in the United States

Attorneys for Padilla, who could not contact him directly for most of the time he was in the brig, argued that the Constitution prohibits the arrest and detention of a citizen on U.S. soil without charges or access to a lawyer. The idea that a citizen could be placed incommunicado in military custody at the order of the president triggered a broad outcry from civil libertarians.

But the Bush administration argued that such measures were consistent with cases from past wars and that it needed the authority to designate U.S. citizens enemy combatants in order to interrogate them and prevent terrorist attacks.

Under the circumstances, Justice Anthony Kennedy wrote Monday, it would be better to avoid "fundamental issues respecting the separation of powers, including consideration of the role and function of the courts," and let the pending civilian trial against Padilla run its course.

Still, Kennedy warned that Padilla has a "continuing concern" that the president might designate him an enemy combatant if he is acquitted, and "that concern ... can be addressed if the necessity arises."