The High Court Punts

Editorial

New York Times

April 4, 2006

The Supreme Court ducked its duty yesterday. It declined to review a notorious case testing President Bush's sweeping claim to have the power to seize American citizens on American soil and toss them into indefinite detention outside the normal legal process — simply by declaring them to be "enemy combatants."

The justices were asked to rule on the case of Jose Padilla, an American citizen who was held for more than three years at a Navy brig in Charleston, S.C., supposedly on suspicion of being part of a plot by Al Qaeda to explode a radioactive "dirty bomb" in the United States. No such case was ever presented against Mr. Padilla, and just before the issue of his detention could reach the Supreme Court, the government transferred him to a civilian prison. It filed criminal charges accusing him of the far lesser conventional crime of conspiring to send money overseas for violent purposes.

The intent of that move was clear: to avoid what appeared to be an inevitable showdown in the Supreme Court over Mr. Bush's imperial vision of executive authority. And it worked. Shifting Mr. Padilla to a civilian court rendered the issue of the president's detention powers "at least for now, hypothetical," according to Justice Anthony Kennedy, who wrote a rare statement setting forth the court's reasoning for denying a hearing on a case.

That statement, which was joined by Chief Justice John Roberts Jr. and Justice John Paul Stevens, slid past the government's unseemly gaming of the justice system. It also ignored the urgency of checking once and for all the egregious overreaching by the president that led to Mr. Padilla's being locked up without any legal process in the first place. He was even denied access to a lawyer until court pressure forced the administration to back off.

This is far from a hypothetical matter, as Justice Ruth Bader Ginsburg noted in her dissent. As she observed, nothing prevents the administration from shifting direction again and returning Mr. Padilla to military custody. "A party's voluntary cessation does not make a case less capable of repetition or less evasive of review," she said. There is also nothing to stop Mr. Bush from applying his arrogated powers to another American citizen.

Fortunately, the court did not hand a total victory to the administration. Justice Kennedy made it clear that the case raises "fundamental issues respecting the separation of powers," and strongly signaled that the court would be ready to step in quickly if the government returned Mr. Padilla to military custody, or his basic rights were denied in his civilian trial.

We trust Justice Kennedy and his colleagues to stay true to that pledge.