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Court sidesteps war powers challenge

In 6-3 vote, justices won't review appeal of ex-'enemy combatant'

From Bill Mears
CNN

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Former "enemy combatant" Jose Padilla faces criminal charges in federal court in Miami, Florida.

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WASHINGTON (CNN) -- A divided Supreme Court on Monday rejected an appeal from a U.S. citizen held until recently as an "enemy combatant" without traditional legal rights.

The case goes to the heart of the president's executive authority against global terrorism.

But justices, in a 6-3 vote, sidestepped that issue, agreeing with the government that it was moot because Jose Padilla now faces criminal charges in Florida. (Read the indictmentexternal link)

The court's denial of jurisdiction was a victory for the Bush administration, which had suffered a series of legal setbacks over its anti-terror policies.

One justice noted that Padilla's appeal was "hypothetical" at this stage since he is no longer in military custody. (Watch Padilla arrive in Florida -- 1:46)

The court's refusal to consider the matter further had been debated internally by the justices for weeks.

Criminal case can go forward

The decision means a criminal trial on conspiracy charges will move forward without a constitutional review of Padilla's 3 1/2-year military detention as an enemy combatant.

Attorneys for the 35-year-old former gang member had urged the high court to intervene.

In January, Padilla was transferred to civilian federal custody. He is charged with conspiracy to murder U.S. citizens and provide material support to terrorists. He has pleaded not guilty, and his criminal trial is scheduled to begin in September.

In legal filings, defense attorneys said Padilla deserves a chance to contest his prior military detention on constitutional grounds. The government emphasized the word "prior" in urging the high court to stay out of the dispute, arguing that because Padilla is no longer an enemy combatant, he has no standing to raise a legal challenge.

In a written explanation, Justice Anthony Kennedy said there were "strong prudential considerations" for the court to stay out of case, at least for now.

"Any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings," Kennedy wrote.

Kennedy said if the government changed Padilla's status he could challenge that in a lower court. Chief Justice John Roberts and Justice John Paul Stevens agreed with Kennedy's reasoning.

Ginsberg, Souter, Breyer dissent

In a brief dissent, Justice Ruth Bader Ginsburg said, "Nothing the government has yet done purports to retract the assertion of executive power Padilla protests." Justices David Souter and Stephen Breyer also would have accepted the case for review.

It takes at least four justices to accept cases for review, meaning oral arguments are held and written opinions are usually issued.

Padilla's attorney, Donna Newman, expressed disappointment. "We believe those constitutional issues should have been resolved by the Supreme Court, and we're not alone on that," she said. "But they have spoken, and there is nothing else we can do."

Padilla was arrested in May 2002 at O'Hare International Airport in Chicago, Illinois, as he returned from overseas, where he had been living.

He was detained as a material witness in the investigation of the September 11, 2001, attacks. President Bush designated him an "enemy combatant" the following month and turned him over to the military.

Padilla was held in a South Carolina naval brig for 3 1/1 years before the government brought criminal charges against him.

Padilla added to indictment in Florida

In November, he was added to an existing indictment in South Florida, which alleges Padilla and three co-defendants belonged to a North American terrorist support cell and intended to carry out jihad, or holy war, in foreign countries.

The government has been engaged in an unusual and often heated dispute with a federal appellate court over judicial authority in this case.

The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals in December blocked Padilla's transfer from military to civilian custody. In a sharply worded opinion, that court noted differences between criminal charges filed against Padilla in November and earlier accusations against him as an enemy combatant.

Padilla originally was accused of, but never charged with, plotting to detonate a "dirty bomb," a crude radioactive device, in the United States.

The Justice Department had demanded the 4th Circuit release Padilla to federal custody.

The Supreme Court backed the government on January 4 and approved the transfer.

CNN's Phil Hirschkorn contributed to this report.

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