Bush team wins on power to detain, for now

The US Supreme Court has handed the White House a temporary victory in a legal battle over the war on terror by declining to take up the appeal of suspected Al Qaeda operative Jose Padilla.

Mr. Padilla's lawyers were waging a potential landmark appeal challenging President Bush's power to indefinitely detain American citizens arrested on US soil as enemy combatants.

Rather than argue the case on the merits, the Bush administration had undertaken an array of procedural maneuvers that appear to have been calculated to avoid Supreme Court review of the case. Many legal analysts were watching closely to see if the high court would permit the government to benefit from such tactics.

But in its Monday order, the justices made clear that while they were divided on whether to take up Padilla's case, a majority was prepared to hear the case should the administration attempt to shift him back into open-ended military custody.

The move means that the justices have left for another day consideration of one of the most controversial aspects of the Bush presidency - whether Mr. Bush has the power to order the open-ended military detention of a US citizen seized on US soil.

In addition, the order comes less than a week after the high court heard oral argument in the case of Salim Ahmed Hamdan, a former driver for Osama bin Laden. Mr. Hamdan and his lawyers are challenging the legality of the military commission process at the terrorism prison camp in Guantánamo Bay, Cuba.

Legal analysts say the high court may have waited to hear arguments in the Hamdan case before deciding whether to take up Padilla's case.

"Going forward from here it will be hard for the government to claim this as a real legal victory, it is more a temporary public relations win," says Stephen Vladeck, a law professor at the University of Miami Law School who is closely following the Padilla case. "And if this is indicative of how the Hamdan case is coming out they may have won a very small battle in the middle of losing the war."

Justice Anthony Kennedy was among three justices who publicly announced their decision not to hear the case now. In an unusual written statement joined by Chief Justice John Roberts and Justice John Paul Stevens, Justice Kennedy said Padilla's claims were merely "hypothetical" since he had been transferred to the jurisdiction of a criminal court.

But Kennedy added that if the government again shifted him into military custody his case "can be addressed if the necessity arises."

Legal analysts say the court is putting the administration on notice. "I think the court is being very sanguine here," says Professor Vladeck. "What they are saying is there are good reasons not to hear this case but 'Government, don't try to take advantage of this. You have transferred him out of military custody, now you are stuck with that.' "

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