DIRTY JUSTICE

The U.S. Supreme Court let the Bush administration off the hook recently when it refused to hear the case of the alleged “dirty bomber” Jose Padilla. Because the administration has played “Where’s Jose?” the case raised only “hypothetical” claims, the majority wrote in deciding not to take the case. The ruling leaves unanswered important questions about the extent of presidential powers, especially his power to order suspects detained indefinitely without being charged with a crime.

Mr. Padilla, an American who converted to Islam, was arrested in 2002 as he returned to Chicago on a flight from Pakistan. Then Attorney General John Ashcroft said that Mr. Padilla had trained with al-Qaida and was part of a plot to set off a radioactive “dirty bomb.” Mr. Padilla was then held in military custody as an enemy combatant although no charges were filed against him.

Mr. Padilla sued the government claiming his detention was unconstitutional. His case reached the Supreme Court in 2004. The justices then ruled, by a 5-4 voted to dismiss the case on a technicality – his lawyers had filed his case in New York but Mr. Padilla was being held in a military brig in South Carolina. His lawyers started over there.

His case again reached the Supreme Court last fall. With his case pending, the Bush administration moved Mr. Padilla from military detention to the federal court system in Florida and charged him conspiring to send money overseas to fund terrorism. The administration then urged the high court to dismiss the case.

By a 6-3 vote, the justices decided not to hear the case. Four votes were needed to take up the case. Three justices – Chief Justice John Roberts, Justice Anthony Kennedy and Justice John Paul Stevens – gave an unusual written explanation for their rationale. They said the case “raises fundamental issues respecting the separation of powers,” but that the course of legal proceedings made those issues “hypothetical.” They added “at least for now,” which leaves the court the option of intervening should the government again change Mr. Padilla’s custody.

The ruling does not mean that the administration’s indefinite detention of terrorism suspects is legal. It simply means the administration has managed to stay one step ahead of the courts.