AD Quality Auto 360p 720p 1080p Top articles1/5READ MOREOregon Ducks football players get stuck on Disney ride during Rose Bowl event160Want local news?Sign up for the Localist and stay informed Something went wrong. Please try again.subscribeCongratulations! You’re all set! WASHINGTON – Jose Padilla, the U.S. citizen held for more than three years in military custody as an enemy combatant, fell one vote short Monday of persuading the Supreme Court to take his case. Four votes are necessary for the court to take a case, and Padilla’s appeal received only three. The result was to leave standing a decision by the federal appellate court in Richmond, Va., that endorsed the government’s power to seize a citizen on U.S. soil and keep him in open-ended detention. Nonetheless, the outcome was not the unalloyed victory for the Bush administration that it might have appeared to be. Three justices who voted not to hear the case – Justices Anthony M. Kennedy and John Paul Stevens, along with Chief Justice John G. Roberts Jr. – filed an unusual opinion explaining their position. They noted that Padilla, who is now out of military custody and awaiting trial in U.S. District Court in Miami on terrorism-related charges, is entitled to a criminal defendant’s full range of protections, including the right to a speedy trial. Most significantly, the three justices warned the administration that the federal courts, including the Supreme Court, would stand ready to intervene “were the government to seek to change the status or conditions of Padilla’s custody.” The comment was clearly a reference to the sequence of events last fall when the administration, days before it was due to file a brief in response to Padilla’s Supreme Court appeal, announced that it had obtained a grand jury indictment and planned to shift him to civilian custody. The administration then filed a brief arguing that the appeal had to be dismissed as moot, because Padilla was getting the relief he requested when he filed his original petition asking to be released from custody or charged with a crime. The Miami indictment charges him with providing material support to terrorists as part of a cell that is said to have sent money and recruits overseas. He is being held without bail, with a trial scheduled for Sept. 9. In simply turning down Padilla’s appeal, Padilla v. Hanft, No. 05-533, the court did not make a formal determination that the case was moot. However, Padilla’s transfer from military custody to the civilian justice system rendered his legal claims “at least for now, hypothetical,” Kennedy wrote in the explanatory opinion, which the two other justices also signed. “Even if the court were to rule in Padilla’s favor, his present custody status would be unaffected,” Kennedy said. In shifting Padilla to civilian custody, the government said it reserved the right to redesignate him as an enemy combatant in the future and send him back to military custody. His lawyers argued that for that reason, the Supreme Court should hear his case. Justice Ruth Bader Ginsburg agreed, filing an opinion Monday dissenting from the court’s refusal to hear the case. “Nothing the government has yet done purports to retract the assertion of executive power Padilla protests,” she wrote, adding that “nothing prevents the executive from returning to the road it earlier constructed and defended.” Justices David H. Souter and Stephen G. Breyer did not sign Ginsburg’s opinion, noting only that they, too, had voted to hear the case. Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., who voted against hearing the appeal, neither signed Kennedy’s opinion nor offered an explanation of their own. It is possible that they objected to the language in the Kennedy opinion about the court’s readiness to intervene “promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised” if the administration changed Padilla’s status once again. The silence of three justices was only one of several mysteries surrounding the court’s disposition of the case, among the most prominent of the cases generated by the administration’s handling of those it has labeled enemy combatants. One mystery is what took the court so long. Another mystery is the role played by Stevens, who signed Kennedy’s opinion rather than provide a crucial fourth vote to his natural allies – Ginsburg, Souter and Breyer.