Wartime challenge of Bush ends

WASHINGTON -- A divided Supreme Court turned back a challenge to the Bush administration's wartime detention powers, rejecting an appeal from US citizen Jose Padilla who until recently had been held as an enemy combatant without traditional legal rights.

Chief Justice John G. Roberts Jr. and two others worried about the government's handling of Padilla and said they would be watching to ensure he receives the protections ''guaranteed to all federal criminal defendants."

Three other justices wanted the court to consider immediately whether President Bush overstepped his authority by ordering Padilla's detention.

Padilla had become a symbol of the administration's aggressive pursuit of terror suspects after Sept. 11, 2001.

The former Chicago gang member and convert to Islam was held in a military prison as an alleged enemy combatant for 3 1/2 years, part of that time without access to lawyers. His supporters wanted the Supreme Court to use his case to declare that Americans cannot be arrested on US soil and held incommunicado.

Justices appeared poised to do that, but with Padilla's appeal pending the government abruptly changed its strategy. Prosecutors brought criminal charges in Florida last fall, and now Padilla has what his lawyers sought all along, traditional legal rights as part of the federal court system.

Padilla, 35, had his first court appearance in January.

The Supreme Court's refusal to take his case was not a surprise. What was surprising was the unusual alliance of recent Bush nominee Roberts, moderate Justice Anthony M. Kennedy, and senior liberal Justice John Paul Stevens.

''In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again," Kennedy wrote for the three. ''That concern, however, can be addressed if the necessity arises."

Deborah Pearlstein, director of law and national security at Human Rights First, said: ''This is a warning shot for the administration. It would be hard for the administration not to see it that way."

Pearlstein said the court may have given away the outcome of a second case arising from its strategy in the war on terror. Justices heard arguments last week in an appeal by a foreign terrorist suspect facing a military commission on war crimes charges at Guantanamo Bay, Cuba. Justices seemed skeptical of the government's arguments.

The Justice Department said it was pleased by the outcome.

''Fighting the war on terrorism requires the use of numerous tools and tactics which have been viewed as lawful by the courts, and we are pleased that Mr. Padilla's case will be pursued through the criminal justice system," Justice spokesman Brian Roehrkasse said.

Padilla was arrested in 2002 after a trip to Pakistan and Afghanistan. The government alleged that he had returned to detonate a radiological ''dirty bomb" in the United States.

The criminal charges do not match that claim. He is accused of being part of a terror support cell that provided recruits, money, and supplies to Islamic extremists worldwide. He has pleaded not guilty and is scheduled to be tried in September.

Three justices said yesterday that the court should have agreed to take up the case over the detention: Justices David H. Souter, Ruth Bader Ginsburg, and Stephen Breyer.

''This case, here for the second time, raises a question 'of profound importance to the nation,' " Ginsburg wrote. ''Nothing the government has yet done purports to retract the assertion of executive power Padilla protests."

Justices first considered Padilla's detention in 2004, but they ruled 5-4 that his case was filed in the wrong court.

Andrew Patel of New York, one of Padilla's lawyers, said: ''I think there is a message here, saying if the government tries to do this again it's not going to take another four years for them [justices] to straighten it out."