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Supreme Court Votes to Refuse Consideration of Padilla Case

By Linda Greenhouse


Jose Padilla, the U.S. citizen held for more than three years in military custody as an enemy combatant, fell one vote short on Monday of persuading the Supreme Court to take his case.

Four votes are necessary for the court to take a case, and Padilla’s appeal received only three. The result was to leave standing a decision by the federal appeals court in Richmond, Va., that endorsed the government’s power to seize a citizen on U.S. soil and keep him in open-ended detention.

Nonetheless, the outcome was not the unalloyed victory for the Bush administration that it might have appeared to be.

Three justices who voted not to hear the case — justices Anthony M. Kennedy and John Paul Stevens, along with Chief Justice John G. Roberts Jr. — filed an unusual opinion explaining their position. They noted that Padilla, who is currently out of military custody and awaiting trial in federal district court in Miami on terrorism-related charges, was entitled to a criminal defendant’s full range of protections, including the right to a speedy trial.

Most significant, the three justices warned the administration that the federal courts, including the Supreme Court, stood ready to intervene “were the government to seek to change the status or conditions of Padilla’s custody.”

The comment was clearly a reference to the sequence of events last fall, when the administration, days before it was due to file a brief in response to Padilla’s Supreme Court appeal, announced that it had obtained a grand jury indictment and planned to shift him to civilian custody.

The administration then filed a brief arguing that the appeal had to be dismissed as moot, since Padilla was getting the relief he requested when he filed his original petition asking to be released from custody or charged with a crime. The Miami indictment charges him with providing material support to terrorists as part of a cell that is said to have sent money and recruits overseas. He is being held without bail, with a trial scheduled for Sept. 9.

In simply turning down Padilla’s appeal, Padilla v. Hanft, No. 05-533, the court did not make a formal determination that the case was moot. However, Padilla’s transfer from military custody to the civilian justice system rendered his legal claims “at least for now, hypothetical,” Kennedy said in the explanatory opinion, which the two other justices signed.