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Supreme Court Sidesteps Jose Padilla's Challenge to Bush Administration's Wartime Powers
By GINA HOLLAND


A divided Supreme Court on Monday rejected an appeal from Jose Padilla, held as an enemy combatant without traditional legal rights for more than three years, sidestepping a challenge to Bush administration wartime detention powers.

Padilla was moved in January to Miami to face criminal charges, and the government argued that the appeal over his indefinite detention was now pointless.

Three justices said the court should have agreed to take up the case anyway: Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer.

And three other court members, including Chief Justice John Roberts, said that they would be watching to ensure Padilla receives the protections "guaranteed to all federal criminal defendants."

An appeals court panel had all but called for the high court to deal with the case, saying it was troubled by the Bush administration's change in legal strategy it brought criminal charges only after it looked like the Supreme Court was going to step in.

Justices first considered in 2004 whether Padilla's constitutional rights were violated when he was detained as an "enemy combatant" without charges and access to a lawyer, traditional legal rights. Justices dodged a decision on technical grounds. In a dissent Justice John Paul Stevens said then that "at stake in this case is nothing less than the essence of a free society."

Justices are reviewing a second case arising from the government pursuit of terrorists, an appeal by a foreign terrorist suspect facing a military commission on war crimes charges at Guantanamo Bay, Cuba. Arguments were last week.

Padilla's case was different. It asked the court to clarify how far the government can go when its hunt for terrorists leads to Americans in this country.

Based on the vote breakdown, it appears the court would have agreed to hear the appeal had Padilla not been charged.

"In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again," Justice Anthony M. Kennedy wrote for himself, Stevens and Roberts. "That concern, however, can be addressed if the necessity arises."

Padilla, a former Chicago gang member and a convert to Islam, was arrested in 2002 after a trip to Pakistan. The government alleged at the time that he was part of a plot to detonate a radiological "dirty bomb" in the United States.

The Bush administration has maintained since 2002 that it had the power to detain him without charges. However, in an abrupt change in strategy, the government late last year brought criminal charges against Padilla. His appeal was pending at the Supreme Court at the time.

The charges do not match the long-standing allegations that Padilla sought to blow up apartment buildings. Instead, he was charged with being part of a North American terrorism cell that raised funds and recruited fighters to wage violent jihad outside the United States.

The strategy shift angered a panel of 4th U.S. Circuit Court of Appeals in Richmond, Va., which had ruled last September that Padilla's constitutional rights had not been violated by his detention.

Judge J. Michael Luttig, a conservative who was named to the bench by President Bush's father, wrote in a decision late last year that the administration's actions left the impression that Padilla had been held in military custody "by mistake."

Ginsburg said Monday that although Padilla is charged in civilian court "nothing prevents the executive (branch) from returning to the road it earlier constructed and defended."

"This case, here for the second time, raises a question 'of profound importance to the nation,'" she wrote.

Padilla pleaded innocent in Florida to the criminal charges and is scheduled to be put on trial this fall. A federal judge refused to set bail for Padilla after a prosecutor said he had a history of arrests and convictions for violent crimes including murder as a juvenile.

The case is Padilla v. Hanft, 05-533.