Bush team wins on power to detain, for now

The US Supreme Court has handed the White House a temporary victory in a legal battle over the war on terror by declining to take up the appeal of suspected Al Qaeda operative Jose Padilla.

Mr. Padilla's lawyers were waging a potential landmark appeal challenging President Bush's power to indefinitely detain American citizens arrested on US soil as enemy combatants.

Rather than argue the case on the merits, the Bush administration had undertaken an array of procedural maneuvers that appear to have been calculated to avoid Supreme Court review of the case. Many legal analysts were watching closely to see if the high court would permit the government to benefit from such tactics.

But in its Monday order, the justices made clear that while they were divided on whether to take up Padilla's case, a majority was prepared to hear the case should the administration attempt to shift him back into open-ended military custody.

The move means that the justices have left for another day consideration of one of the most controversial aspects of the Bush presidency - whether Mr. Bush has the power to order the open-ended military detention of a US citizen seized on US soil.

In addition, the order comes less than a week after the high court heard oral argument in the case of Salim Ahmed Hamdan, a former driver for Osama bin Laden. Mr. Hamdan and his lawyers are challenging the legality of the military commission process at the terrorism prison camp in Guantánamo Bay, Cuba.

Legal analysts say the high court may have waited to hear arguments in the Hamdan case before deciding whether to take up Padilla's case.

"Going forward from here it will be hard for the government to claim this as a real legal victory, it is more a temporary public relations win," says Stephen Vladeck, a law professor at the University of Miami Law School who is closely following the Padilla case. "And if this is indicative of how the Hamdan case is coming out they may have won a very small battle in the middle of losing the war."

Justice Anthony Kennedy was among three justices who publicly announced their decision not to hear the case now. In an unusual written statement joined by Chief Justice John Roberts and Justice John Paul Stevens, Justice Kennedy said Padilla's claims were merely "hypothetical" since he had been transferred to the jurisdiction of a criminal court.

But Kennedy added that if the government again shifted him into military custody his case "can be addressed if the necessity arises."

Legal analysts say the court is putting the administration on notice. "I think the court is being very sanguine here," says Professor Vladeck. "What they are saying is there are good reasons not to hear this case but 'Government, don't try to take advantage of this. You have transferred him out of military custody, now you are stuck with that.' "

Padilla's lawyers needed to convince at least four of the nine justices to hear the case. But only three justices agreed to take it up now, according to the Monday order.

"Nothing the government has yet done purports to retract the assertion of executive power Padilla protests," writes Justice Ruth Bader Ginsburg in a dissent. She and Justices David Souter and Stephen Breyer voted to take up the case.

"Although the government has recently lodged charges against Padilla in a civilian court, nothing prevents the executive from returning to the road it earlier constructed and defended," Justice Ginsburg writes.

In November, two days before the administration's brief was due in Padilla's Supreme Court appeal, the Justice Department announced that Padilla had been indicted in Miami. Administration officials said his transfer to a civilian court rendered moot Padilla's Supreme Court case challenging his military detention.

Significantly, the justices declined to declare the issues raised by Padilla moot.

In broad terms both the Padilla and Hamdan cases touch on fundamental issues of the role of the judiciary and the power of the presidency in times of national peril.

The two potential sources of authority in the Padilla case are the inherent powers accorded the president as commander in chief under the Constitution, and a resolution passed by Congress in the wake of the 9/11 attacks authorizing the president to "use all necessary and appropriate force ... to prevent any future acts of international terrorism against the United States."

These are the same legal authorities cited to justify a string of controversial White House efforts in the war on terror, including the president's authorization for the National Security Agency to conduct warrantless surveillance within the US on Americans suspected of Al Qaeda links.

The Padilla case was potentially a landmark in this area of law because it clearly pits the president's powers to protect national security against an array of constitutional guarantees and protections for American citizens.

The high court refusal to take up the case comes at a time when a majority of justices do not appear to be favorably disposed to the president's approach to inherent executive power under the Constitution during times of national crisis. The high court also appears to be deeply split on the extent to which the congressional authorization for military force grants the president the power he claims.

Padilla was arrested in May 2002 at Chicago's O'Hare International Airport and was held for 3-1/2 years without charge in military custody as an "enemy combatant." Administration officials said he had plotted with Al Qaeda to detonate a radiological "dirty-bomb" in a US city and had been trained to blow up apartment buildings. They said his continued detention without access to lawyers or judicial process was necessary to facilitate his interrogation to help head off ongoing terror plots.