Justices decline to take on case of `dirty bomb' suspect

Padilla claim called `hypothetical' because he is no longer in military jail

April 04, 2006|By DAVID G. SAVAGE

WASHINGTON -- The Supreme Court decided yesterday against hearing the case of American-born Jose Padilla, the supposed "dirty bomber," but only because the Bush administration has freed him from military custody.

By a 6-3 vote, the justices dismissed an appeal filed on Padilla's behalf because, they said, his case raises only a "hypothetical" claim about unchecked presidential power.

The court's action clears the way for Padilla to be tried on lesser criminal charges in a federal court in Miami. It leaves unresolved the basic question of whether the president, as commander in chief, has the power to arrest Americans in the United States and to hold them without a trial if he believes they are working for an enemy.

President Bush and his lawyers have claimed such a power as part of the president's wartime authority. They argue that in the war on terror, the government needs special powers to intercept and question al-Qaida conspirators who have plotted attacks in this country.

The U.S. Constitution and federal law says American citizens cannot be arrested and held without "due process of law." That usually involves, at minimum, a hearing before a judge at which the detained person can challenge the government's basis for holding him.

From the start, the case of Jose Padilla v. Donald Rumsfeld had the potential to be legal landmark in the area of presidential powers and civil liberties during war. Instead, it has been an exercise in frustration for the lawyers who challenged Bush's view.

In June 2002, Attorney General John Ashcroft announced that the government had disrupted a plot to set off a radioactive "dirty bomb" in the United States. Padilla, a Bronx-born Muslim who had trained at al-Qaida camps in Afghanistan, was arrested at Chicago's O'Hare International Airport after a flight from Pakistan.

Rather than charge him as a criminal, the White House said the president had decided to hold Padilla in military custody as an enemy combatant. He was not permitted to speak with his family or with a lawyer, and no charges were filed against him. Civil libertarians said that was blatantly unconstitutional,

Two years ago, the administration dodged a likely defeat in the Supreme Court when the justices, by a 5-4 vote, dismissed Padilla's first case on technical grounds. His lawyers in New York had filed a legal challenge to his detention there, but their client was then held in a military brig in South Carolina. The court said his lawyers should have filed their claim in South Carolina.

Four justices dissented, saying the "essence of a free society" involves freedom from arbitrary imprisonment.

That day, Justice Antonin Scalia made the same point in a related case that freed U.S.-born Taliban soldier Yasar Hamdi. "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive," Scalia wrote. Justice Anthony M. Kennedy expressed a similar view.

The stated views of Scalia and Kennedy strongly suggested that Padilla would eventually win. His lawyers started over again in South Carolina, hoping to quickly get his case back before the high court. But last fall, when his second appeal was pending before the justices, the Bush administration changed course.

It indicted Padilla on a terrorism conspiracy charge in Florida that made no mention of a "dirty bomb" or a plot to blow up buildings. The government moved him out of the military brig and into the federal courts and urged the high court to dismiss his appeal as moot.

Justices Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer voted to hear Padilla's latest appeal. Nothing prevents the government from switching course again and returning Padilla to the brig, Ginsburg said.

Three others - Justice Anthony M. Kennedy, Chief Justice John G. Roberts Jr. and Justice John Paul Stevens - issued a statement explaining that they had turned down the case because Padilla is no longer held by the military.

His case "raises fundamental issues respecting the separation of powers" and that "counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical," they said.

If the government changes course again, they said, a federal judge "should act promptly" to consider a writ of habeas corpus for him.

Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. apparently voted against hearing Padilla's case. They did not say why.

David G. Savage writes for the Los Angeles Times.

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