The Supreme Court has punted on hearing the latest appeal of "dirty bomber" suspect (and American citizen) Jose Padilla, thereby sidestepping a challenge to the "enemy combatant" designation that allowed the government to hold Padilla for three years in military custody before filing charges against him in a federal court. From the Wash Times account:
Chief Justice John G. Roberts Jr. and Justices John Paul Stevens and Anthony M. Kennedy issued a brief opinion yesterday, saying there were "strong prudential considerations" requiring the high court to reject Padilla's appeal.
"Even if the Court were to rule in Padilla's favor, his present custody status would be unaffected," Justice Kennedy wrote for the others….
Justice Ginsburg said the case raises the question of "Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an 'enemy combatant?'?"
"It is a question the Court heard, and should have decided, two years ago," she said. "Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests."
Whole thing here.
The SF Chronicle editorializes on the Supes' "cowardice" thus:
By taking a pass on whether President Bush has the right to detain a U.S. citizen indefinitely without trial, the Supreme Court missed a chance to reassert the balance of powers that are being challenged at every turn by this White House.
During Chief Justice Roberts' confirmation hearings, Reason's Jacob Sullum lamented the Senate's unwillingness to query the judge on this very question:
That's a shame, because due process is under assault by a president who claims the authority to lock up anyone he deems an "enemy combatant" until the end of the war on terrorism, which seems likely to outlast Roberts' tenure as chief justice.
Still, Jacob held out the hope that, "When Roberts hears terrorism cases, I hope he shows the same respect for process and the same aversion to letting the government make up the rules as it goes along."
Ah well. More here.
Back in January '05, Harvey Silverglate argued that the widely hailed Supreme Court decisions in Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla were really pretty awful when it came to protecting civil liberties. Read all about it here.