Today, the Supreme Court declined to hear the case of Jose Padilla, the U.S. citizen picked up on U.S. soil and held as an enemy combatant for more then three years without charge and without an opportunity to defend himself. The Supreme Court’s refusal to address this case on the merits means that the Bush administration’s assertion that it can unilaterally and indefinitely detain without charge anyone, anywhere on the grounds that they are an “enemy combatant” remains unchecked.

Jose Padilla was arrested on a “material witness” warrant in May 2002, as he arrived at Chicago’s O’Hare international airport. He was not carrying any arms, explosives, or dangerous devices of any sort. One month later, on June 9, 2002, President Bush declared Padilla an enemy combatant and directed Secretary of Defense Donald Rumsfeld to take him into military custody. The government contended that Padilla met with members of al-Qaeda in Afghanistan and Pakistan, developed a plan with them to build and detonate a radiological “dirty” bomb in the United States, and returned to the United States to further this plan. For three and a half years as an enemy combatant, Padilla was held in a military brig in South Carolina. His only contact with the outside world was with his lawyers.

Last September, the Fourth Circuit affirmed the president’s authority to detain Padilla as an enemy combatant, even though he was an unarmed U.S. citizen arrested on U.S. soil. Padilla appealed to the Supreme Court. Then, two days before the government’s response was due, the government unsealed an indictment against Padilla, charging him with being part of a conspiracy to send money and recruit overseas. The indictment said nothing about the facts that underlay the government’s claim that he could be detained as an enemy combatant: the alleged plot to detonate a bomb in the United States.

The government also asked the Fourth Circuit to withdraw its opinion. In a strongly worded opinion, the Fourth Circuit refused to do so and criticized the U.S. government for legal maneuvering that seemed designed to avoid Supreme Court review.

Today, however, the Supreme Court allowed the administration to get away with exactly what the Fourth Circuit condemned. In a 6-3 decision, the Supreme Court concluded that the case is not ripe for review since Padilla has now been criminally charged and moved out of military custody. But as Justice Ginsburg notes, dissenting from the Court’s decision to decline the case, “Nothing the Government has done purports to retract the assertion of Executive power that Padilla protests.”

What this means is that the administration can still arbitrarily detain U.S. citizens in the U.S. on the grounds they are “enemy combatants” and then hold them without charge or trial for years. If the government charges or releases such a detainee before the case works its way up to the Supreme Court, there is no remedy for this unlawful detention.

Padilla is one of three persons who have been detained as enemy combatants inside the United States since September 11, 2001. Ali Saleh Kahlah al-Marri, a Qatari national living in the United States, was designated an enemy combatant in June 2003 and transferred from the criminal justice system, where he was facing charges of fraud and lying to the FBI, to indefinite military detention. He is still being held in a brig in South Carolina – almost three years later. The third individual, Yasir Hamdi, was released and returned to Saudi Arabia in 2004.