Lyle Deniston at SCOTUSblog reports this morning:

The Supreme Court on Monday refused to hear the appeal of Jose Padilla, a U.S. citizen held for more than three years as an “enemy combatant.” The Court, however, declined to dismiss the case as moot, as the Bush Administration had urged. Only three Justices voted to hear the case, according to the order.

Three other Justices took the unusual step of issuing an opinion to justify the denial of review. They said that “there are strong prudential reasons disfavoring” Court review. He is due to go on trial on criminal charges, and “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 that “Padilla’s claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings had made them, at least for now, hypothetical. This is especially true given that Padilla’s current [civilian] custody is part of the relief he sought, and that its lawfulness is uncontested.”

In an opinion written by Justice Anthony M. Kennedy, and joined by Chief Justice John G. Roberts, Jr., and Justice John Paul Stevens, those three conceded that Padilla “has a continuing concern that his status might be altered again.” That, however, “can be addressed if the necessity arrives.”

Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter said they would have heard the case (Padilla v. Hanft, 05-533).

AP adds:

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.”

Flashback:

WSJ 12/23/05- Padilla putdown:

The Bush Administration is sometimes its own worst enemy when it comes to fighting for the tools it needs in the war on terror.

In that category we’d put the President’s failure to defend the need for aggressive interrogation of foreign terror detainees, culminating in his recent cave-in on Senator John McCain’s “torture” amendment. Signing up for a six-month extension of the Patriot Act, rather than sticking by his demands for long-term renewal, could turn out to be another. Last month’s decision to abandon the enemy-combatant case against Jose Padilla in the U.S. Supreme Court is a third example.

Fortunately, in the Padilla case, an appeals court is now forcing the Administration to show the courage of its own convictions. In an extraordinary ruling issued Wednesday, a unanimous three-judge panel of the Fourth Circuit Court of Appeals in Richmond, Virginia, rejected the Department of Justice’s request to vacate its earlier ruling, which said that the President “unquestionably” has the right to detain U.S. citizens who happen to be enemy combatants–a right the Administration has said repeatedly is indispensable to fighting this war.

It also rejected the Administration’s request to transfer Padilla from military to civilian custody so that he could answer criminal charges brought last month in a federal court in Miami. The case now continues its course to the Supreme Court, which can either hear the case (as expected) or let the Fourth Circuit’s ruling stand.

This week’s Fourth Circuit opinion is scathing, and a Washington attorney of our acquaintance says, “I have never seen that kind of language addressed to the government.” Writing for the court, Judge Michael Luttig says that the Administration’s actions leave the impression that Padilla has been held “by mistake” and give the “appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court.” This case “presents an issue of such especial national importance as to warrant final consideration by” the High Court.

We’d agree that there is a vital constitutional principle at stake here, and we hope the Supreme Court takes it–despite the government’s apparent ambiguity about the case. Over the past three and a half years, Padilla has become a liberal icon–an “innocent” man who has been held “illegally.” The public debate has been largely about one man’s rights and not about the right of the rest of us to be protected from enemy attack…

And so it will remain.

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