NEAL CONAN, host:

The Supreme Court yesterday declined to hear the case of Jose Padilla. The American citizen was arrested and held as an enemy combatant for more than three years. He appealed to the Supreme Court and challenged the government's right to hold a so-called enemy combatant indefinitely without charge. David Savage covers the Supreme Court for the Los Angeles Times. He's been following the Padilla case closely. He joins us now by phone from his home in Virginia. David, always nice to have you on the program.

Mr. DAVID SAVAGE (reporter, Los Angeles Times): Hi, Neal.

CONAN: The Supreme Court said they wouldn't hear the Padilla case. How come?

Mr. SAVAGE: Well, because, as one of them said, it was sort of a hypothetical case. The government, last fall, had retreated in the face of an impending defeat. That is, they knew with pretty good certainty that they were going to lose this case in the Supreme Court, so they did what Padilla's lawyers had asked for, which is, they took him out of the military brig, they charged him with a crime, and he's now facing a trial down in Miami for some lesser conspiracy charges. But that's essentially what Padilla's lawyers asked for, and so the government turned around and said, this case is now moot. That is, he's no longer being held as an enemy combatant, and in the end, the government's retreat succeeded the way retreats do. You know, you live to fight another day. The government would have lost this case, and now they can say, well, we didn't really lose it. You know, there's no ruling on the issue.

CONAN: Yet, the charges with which Mr. Padilla was initially accused of, coming into the country to explode a dirty bomb, or explode apartment buildings in New York City, those aren't anything like the charges he's being tried on in Miami.

Mr. SAVAGE: That's right, I mean, the government retreated in several ways. I mean, they dropped the idea that we can hold him indefinitely in a military brig, and then, when they actually went to bring charges against him, they're quite -- they look like rather minor charges. They say he was involved with a few people who were conspirators in some sort of vague terrorist plot, but nothing about dirty bombs and that sort of thing.

CONAN: What took so long? Why did the Supreme Court take so long to issue a decision which basically says, we're not going to decide?

Mr. SAVAGE: That's a good question, Neal. I've never seen one where so many weeks -- they list cases on, we get a conference list of cases they're going to talk about and this one was re-listed eight or nine times, which is quite unusual. I think the dilemma they had was that some of them must have thought the government is pulling sort of a fast one here, they hold this guy for three years, then this case, remember this case had been up to the Supreme Court before, and they had punted on it, sort of on technical grounds...

CONAN: Had to re-file, not in New Jersey, but in South Carolina.

Mr. SAVAGE: Yes, that's right. They said you should have filed your Writ of Habeas Corpus where your client was being held in South Carolina and not there up in New York or New Jersey where he was originally held. But the four liberal Justices, led by Justice Stevens, said this is flatly unconstitutional. And the same day, this was two years ago, in the Hamdi case, Justice Scalia issued a, quite a strong opinion, saying that under no circumstances can you hold an American citizen without some charges. You can charge them with treason, Scalia said, you can charge them with a crime, but you can't just hold them indefinitely.Scalia draws a very big line between American citizens and, you know, alien, foreigners. But, once the government knew they lost Scalia, they knew they had lost this case, because they had the four liberals, Scalia, and possibly Justice Kennedy. As to why it took so long, I suppose they debated, I guess they debated, should we issue some sort of brief ruling that vacates the lower court opinion. And I suspect they went back and forth on that, because it's a little awkward to issue an opinion in a case that's really not a live case anymore. But one way or another, it took many weeks, and then, what they issued yesterday, of course, was sort of a non-decision. They said we're not going to take this case, because, essentially because he's no longer being held in military custody.

CONAN: But doesn't that leave the lower court opinion standing? An opinion that says it's okay to hold an American citizen without charge indefinitely?

Mr. SAVAGE: Yes, it does, although if I were the government, I wouldn't rely on it, because if they try again -- you know, Padilla was a category of one. He was an American citizen, arrested in the United States, and held indefinitely as an enemy combatant under the President's say-so. He was the only one, he was sort of the test case, and yes, that lower court opinion survives, but I think anybody who could sort of count the votes at the Supreme Court knew the government was ultimately going to lose on this. So, that's why I say it's sort of a successful retreat in the sense that that opinion still survives, but I think they also knew that in the end, when it was tested, that they would lose.

CONAN: Justice Ginsberg, in a minority, said that in Mr. Padilla's case, is not moot. In fact, the government could, for example, he was found not guilty of the charges in Miami, the government could turn around and charge him as an enemy combatant again, and still throw him back in jail.

Mr. SAVAGE: Yes, that's right. And that shows you why it could take a number of weeks for the Supreme Court to resolve this. Because even though the question of whether this case is moot or is not moot, you could get a number of good legal opinions on this. You know, I should also say, Neal, that I think the government's position was not frivolous, that if you think back to, you know, early into 2002, a few months after 9/11, and you're in the Justice Department or the FBI, they had a great fear. They suspected and they had a fear that there were al-Qaida operatives somewhere in the United States. And they wanted to get information on these people and disrupt these plots. They knew about Padilla from, they had been following him for several years, so when they returned from Afghanistan, they arrested him and held him. Now, if you charge somebody with a crime, the first thing you do is get a lawyer and the lawyer says, shut up, don't talk to the government. So, from the very beginning, you could see their point, that they said we want to talk to this guy, and we want to know, is there a dirty bomb plot in the United States. So, I think their legal argument made a lot of sense for a number of weeks. The problem is, they sort of, then went to court and say we could hold this guy indefinitely for as long as the war on terrorism goes on, and in the end, I think you couldn't get five Justices of the Supreme Court to endorse that kind of position.

CONAN: There was an unusual admonishment also to the government in yesterday's decision that said, we now expect that Mr. Padilla will be extended all the rights and privileges, including the right to a speedy trial.

Mr. SAVAGE: Yes, that's right. I think they were, as a number of people said, they were putting the government on notice, that if you try to do anything like this again, we're going to grant a Writ of Habeas Corpus and bring this person before a Judge, and say you can't do this to an American citizen. You need to charge him with a crime. You can't just put him into a military brig and say we're going to hold him indefinitely, with no charges, as an enemy combatant.

CONAN: And even if you do bring him up on charges, you can't just try to spin that out forever either.

Mr. SAVAGE: That's right. It's clearly, I think that's why this was sort of a compromise decision. They said, we're not going to take this case now because it's hypothetical. But we're putting you, the government, on notice that we're not going to allow this sort of thing to go on again.

CONAN: David Savage, thanks very much.

Mr. SAVAGE: Thank you Neal.

CONAN: David Savage covers the Supreme Court for the Los Angeles Times. He joined us by phone today from his home in Virginia, where there are apparently very loud birds. You're listening to TALK OF THE NATION from NPR News.

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