Split Supreme Court ducks Padilla challenge to Bush's war powers

WASHINGTON – A divided Supreme Court today rejected an appeal from a man held until recently as an enemy combatant without traditional legal rights, in effect sidestepping a challenge to Bush administration wartime detention powers.

Jose 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.

An appeals court panel had all but called for the court to deal with the case, saying it was troubled by the Bush administration's change in legal strategy — after holding Padilla more than three years without charges.

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. 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."

Stevens and two other court members, Chief Justice John Roberts and Justice Anthony M. Kennedy, explained their today votes not to deal with Padilla's case.

Although Padilla's claims "raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, (the case) also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical," Kennedy wrote for the three.

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.