Padilla cert denied

The Supreme Court denied cert in Jose Padilla's case this morning, giving the green light to the criminal prosecution here in Miami. It wasn't your ordinary cert denial as it had a number of opinions. Here is ScotusBlog's coverage:

Court refuses to hear Padilla appeal
Posted by Lyle Denniston at 10:02 AM
The Supreme Court on Monday refused to hear the appeal of Jose Padilla, a U.S. citizen held in a military jail for more than three years as an "enemy combatant." The Court, however, declined to dismiss the case as moot, as the Bush Administration had urged. Only three Justices voted to hear the case, according to the order and accompanying opinions.
The decision was a victory for the Bush Administration in one significant sense: by not finding the case to be moot, the Court leaves intact a sweeping Fourth Circuit Court decision upholding the president's wartime power to seize an American inside the U.S. and detain him or her as a terrorist enemy, without charges and -- for an extended period -- without a lawyer.
The Administration was so eager to have the case out of Court that it was willing to let the Fourth Circuit decision disappear, which would have been the result of a dismissal of the appeal on mootness grounds.
Three other Justices took the unusual step of issuing an opinion to justify the denial of review. They said that "there are strong prudential reasons disfavoring" Court review. Padilla is due to go on trial on criminal charges in civilian court, and "any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings."
In an opinion written by Justice Anthony M. Kennedy, and joined by Chief Justice John G. Roberts, Jr., and Justice John Paul Stevens, those three conceded that Padilla "has a continuing concern that his status might be altered again." That, however, "can be addressed if the necessity arises."
Kennedy wrote that "Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts." That, he said, "also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical. This is especially true given that Padilla's current [civilian] custody is part of the relief he sought, and that its lawfulness is uncontested."
Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter said they would have heard the case (Padilla v. Hanft, 05-533). Ginsburg wrote a separate opinion making the argument that the case was not moot, and should be reviewed. Breyer and Souter simply noted their votes in favor of review. It takes four votes to grant review, however.