Court delayed day it will have to address combatant issue

The Supreme Court of the United States has delayed for no good reason the day when it will have to address whether a president can order the indefinite detention of an American citizen without filing specific criminal charges.
The court had the opportunity to take the case of Jose Padilla, who was arrested in Chicago four years ago and shunted between states and held incommunicado without being able to defend himself against a specific charge. Padilla -- who by all accounts is less than an exemplary citizen -- was a dangerous terrorist, the government said. First, it was said he had come back to the United States to detonate a dirty bomb. Later, it was said that he intended to blow up empty apartments.
But throughout the first years of his detention, the government maintained that it did not have to charge Padilla with anything because he had been declared by President Bush as an enemy combatant, and therefore could be held without charge and without end in a military prison.
On the face of it, that is a policy that should frighten Americans, even during a declared war, much less during a harder-to-define war on terror. The concept that all of the protections built into the Constitution by the Founding Fathers (who themselves knew a little something about war) could be negated by a declaration of the president -- no evidence necessary -- is a radical departure from the nation's history. And it is a decidedly poor example to lesser nations of how a constitutional democracy is supposed to work.
The timeline
Padilla was arrested as a material witness in Chicago in May 2002 and taken to New York. When he got a lawyer and challenged the material witness warrant, President Bush declared him an enemy combatant and ordered him held indefinitely and without charge in a military prison.
The first time he sought habeas corpus, in New York, the Supreme Court turned down his petition on procedural grounds -- he was being held in another state. Padilla's attorneys refiled in the proper federal district, and again the case landed on the doorstep of the Supreme Court.
When it did, the Bush administration brought criminal charges against Padilla in Miami and transferred him to the federal prison system. This week the Supreme Court again denied his petition on the grounds that Padilla had gotten what he sought -- to either be tried or released.
The high court acknowledged that Padilla had a legitimate worry that the administration might again declare him an unlawful combatant and put him back in a military prison. If that were to happen, the Supreme Court said in a pointed warning to the government, the federal courts would rule "quickly" on any challenge by Padilla to ensure that his right of habeas corpus -- which the government has tried to deny him -- is not compromised.
But that court fight could take years. Padilla should have long ago been tried. He should be serving his sentence or free, depending on the verdict.
In arguing in favor of hearing Padilla's case, Justice Ruth Bader Ginsburg noted that a question remains unanswered: "Does the president have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an executive declaration that the citizen was, at the time of his arrest, an 'enemy combatant'?"
Clearly the Bush administration continues to think so. It waffled on Padilla's detention only to avoid having the case heard by the Supreme Court. For that reason alone, the court should have accepted the case. Instead, three justices argued for that, three justices dodged the case, but warned that they would revisit it if necessary, and three -- frighteningly enough -- didn't think Padilla had anything to complain about.