High Court Declines to Take Up ‘Dirty Bomber’ Case

The Supreme Court decided Monday against hearing the celebrated case of Jose Padilla, the supposed “dirty bomber,” but only because the Bush administration had freed him from military custody.

By a 6-3 vote, the justices dismissed an appeal filed on Padilla’s behalf because his case raised only a “hypothetical” claim about unchecked presidential power.

The court’s action clears the way for Padilla to be tried on criminal charges in a federal court in Miami. However, it leaves unresolved the question of whether the president, as commander in chief, has the power to arrest Americans in this country and hold them without a trial if he believes they are working for the enemy.

President Bush and his lawyers have claimed this power as part of his wartime authority. They argue that in its war on terrorism, the government needs special powers to intercept and question Al Qaeda conspirators who are plotting attacks in this country.

But 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 in which the detained person can challenge the government’s basis for holding him.

From the start, the case of Jose Padilla vs. Donald Rumsfeld had the potential to be a 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, then-Atty. Gen. 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, it was alleged, had trained at Al Qaeda camps in Afghanistan. He was arrested at Chicago’s O’Hare International Airport after a flight from Pakistan.

Rather than charge him as a suspected 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 a lawyer, and no charges were filed against him. Civil libertarians said this 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 liberal justices dissented, saying the “essence of a free society” involved freedom from arbitrary imprisonment.

The same day, conservative Justice Antonin Scalia made the same point in a related case that freed U.S.-born Taliban soldier Yaser Esam 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 voiced a similar view.

The stated views of Scalia and the moderate 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 in the U.S. The government moved him from military custody into the federal court system and urged the high court to dismiss his appeal as moot.

Monday’s decision not to hear the case meant that the administration had again avoided a likely defeat. Civil libertarians voiced disappointment.

“It’s unfortunate that the executive has been able to avoid final review for so long of a case that presents such fundamental questions of the constitutional rights of U.S. citizens,” said Deborah Pearlstein, a lawyer for Human Rights First. “But there’s no question that the court’s opinion puts the president on notice.”

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 -- Kennedy, Chief Justice John G. Roberts Jr. and Justice John Paul Stevens -- issued a statement explaining they had turned down the case because Padilla was 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.

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