[JURIST] The US Supreme Court [official website; JURIST news archive] has refused to hear the appeal of Jose Padilla [JURIST news archive], who had challenged whether an enemy combatant can be held indefinitely without charge. Padilla, the so-called dirty bomber, was detained in 2002 and had challenged his continued detention with the US Court of Appeals for the Fourth Circuit ruling [opinion, PDF; JURIST report] last September that he could be held without charge indefinitely. The decision was appealed to the Supreme Court [cert. petition, PDF; JURIST report], but in November, Padilla was charged [PDF indictment; JURIST report] with conspiracy to murder US nationals, conspiracy to provide material support to terrorists, and providing material support to terrorists.

Government lawyers had asked the Court to dismiss the case as moot [JURIST report], and though the Court voted 6-3 not to hear Padilla's appeal, in a separate concurrence [PDF text], Justice Kennedy specified different reasons for rejecting the case:

Whatever the ultimate merits of the parties' mootness arguments, there are strong prudential considerations disfavoring the exercise of the Court's certiorari power. Even if the Court were to rule in Padilla's favor, his present custody status would be unaffected. Padilla is scheduled to be tried on criminal charges. 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 light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again. That concern, however, can be addressed if the necessity arises….

That Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, 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 custody is part of the relief he sought, and that its lawfulness is uncontested.

Kennedy's concurrence was joined by Chief Justice Roberts and Justice Stevens. Justices Souter, Breyer and Ginsburg would have granted certiorari, and Ginsburg wrote a separate dissent [PDF text] from the decision. AP has more.