The End of the Enemy Combatant Saga? Jose Padilla Indicted by Grand Jury

The Washington Post is reporting that Jose Padilla, the alleged dirty bomber held for three years as an “enemy combatant”, has been indicted by a federal grand jury for conspiring to commit terrorist attacks overseas. Interestingly, the indictment does not include the “dirty bomb” charges that were the basis for Padilla’s detention as an enemy combatant.

The obvious reason for bringing this indictment is to avoid a coming showdown in the U.S. Supreme Court over Padilla’s detention. As a U.S. citizen, Padilla’s detention was probably going to be reversed by the current Court’s membership, and even a future court’s membership, with Justice Scalia poised to order Padilla’s release.

This avoids the enemy combatant issue for U.S. citizens, at least right now. But the issue of the President’s authority to hold enemy combatants who are not U.S. citizens, mostly in Guantanamo Bay. That issue may yet be litigated. Or it may not, depending on whether Congress acts to endorse the President’s detention of those aliens in Guantanamo.

This is a smart move strategically (less so, from a principled point of view). It may be the last piece in the Bush Administration’s retreat from its more aggressive legal positions in the conduct of the war on terrorism. If Congress acts on McCain-Graham, the Bush Administration may yet avoid final court battles on all of its positions. We’ll see.