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WASHINGTON, D.C. � The Bush administration succeeded yesterday in its effort to keep the case of Jose Padilla, an American-born former enemy combatant, off the U.S. Supreme Court’s docket. The Court denied review in Mr. Padilla’s case, as requested by the Justice Department, which argued that because Mr. Padilla is no longer in military custody, his challenge to his detention as an enemy combatant is moot. But statements from the justices indicated that their decision was a close call. Three justices said they would have granted review in Padilla v. Hanft �one vote short of the Court’s traditional requirement of four justices to add a case to the docket. The case asked whether President George W. Bush had the authority to detain Mr. Padilla as an enemy combatant. “It’s troubling that the Court has allowed the administration to escape a ruling in the merits of the enemy-combatant issue,” said University of Richmond law professor Carl Tobias, who has monitored the case. The New York-born Mr. Padilla was arrested in 2002 at Chicago’s O’Hare International Airport after returning from what the government says were al-Qaeda training sessions in Afghanistan and Pakistan. Despite his U.S. citizenship, Mr. Padilla was designated an enemy combatant and held in a military brig. After his challenge to his imprisonment failed before the Supreme Court in 2004 for jurisdictional reasons, Mr. Padilla refiled his plea in the District of South Carolina. A district judge held that the president lacked the authority to detain Mr. Padilla, but the U.S. Court of Appeals for the Fourth Circuit reversed, finding that Mr. Padilla’s capture was justified by the post-9/11 authorization of military force passed by Congress. After Mr. Padilla appealed again to the Supreme Court, a Miami grand jury indicted him on other charges last November. The indictment had the effect of moving Mr. Padilla from military to civilian jurisdiction and ending his enemy-combatant designation. Solicitor General Paul Clement told the Court that Mr. Padilla’s change in status effectively mooted his challenge, in part because Mr. Padilla had won one part of his legal battle: release from military custody. Mr. Padilla responded that the case was not moot because it is possible he could be re-designated an enemy combatant. ‘Prudential Considerations’ In an unusual statement explaining the Court’s denial of review, Justice Anthony Kennedy said that “strong prudential considerations” argued against the Court taking up the case. If the Court did review Mr. Padilla’s case, Justice Kennedy said, its ruling on the enemy-combatant issue would not affect his current custody status. Given that the government has detained Mr. Padilla for nearly four years, Justice Kennedy said “it must be acknowledged” that he has a “continuing concern” that he could be reclassified as an enemy combatant. If that happens, Justice Kennedy said, Mr. Padilla could challenge the detention again in several ways, including a habeas petition to the Court. Justice Kennedy put the government on notice that the courts would be open for further appeals if Mr. Padilla’s status changes again, “to ensure that the offices and purposes of the writ of habeas corpus are not compromised.” Chief Justice John Roberts and Justice John Paul Stevens joined the Kennedy statement . Justice Stevens’ participation is notable because when the Court first ruled against Mr. Padilla in 2004, he dissented. He argued then that the jurisdictional impediment in the case � Mr. Padilla had filed in the wrong district court � should not have prevented the justices from reviewing “questions of profound importance to the Nation.” Though Justices Antonin Scalia, Clarence Thomas, and Samuel Alito did not indicate which way they voted, it can be presumed they were against granting review. Justice Ruth Bader Ginsburg reminded Justice Stevens of his earlier words. In explaining why she would have granted review in Mr. Padilla’s case, she said that Mr. Padilla’s change in status did not make his case moot. “Nothing the government has yet done purports to retract the assertion of executive power Padilla protests,” Justice Ginsburg wrote. “Nothing prevents the executive from returning to the road it earlier constructed and defended.” Justices David Souter and Stephen Breyer did not join Justice Ginsburg’s statement but indicated separately that they too would have docketed Mr. Padilla’s case. 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,” spokesman Brian Roehrkasse said. Andrew Patel of New York, one of Mr. 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.” Mr. Patel said Justices Kennedy, Roberts and Stevens “give a laundry list of protections that Mr. Padilla has � it’s clear those justices are saying, ‘We’re paying attention.’” Yesterday’s action does not mean the Court will be totally silent on the issue of enemy combatants this term. The Court heard arguments last week on related issues in Hamdan v. Rumsfeld, a case involving a Guant�namo Bay, Cuba, detainee. � Tony Mauro covers the Supreme Court for Legal Times, an affiliate of the New York Law Journal. He can be contacted at [email protected] . The Associated Press contributed to this story.

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