FOX NEWS - Supreme Court Refuses to Take Terrorism Case That Challenges Enemy Combatant Status

FOX Special Report With Brit Hume
April 3, 2006

BRIT HUME: Welcome to Washington. I'm Brit Hume. The federal jury hearing the sentencing case in the trial of convicted al Qaeda conspirator Zacarias Moussaoui reached a decision today on whether Moussaoui could get the death penalty. Fox News correspondent Mike Emanuel is standing by at the federal courthouse in Alexandria. Mike?

MIKE EMANUEL, FOX NEWS CORRESPONDENT: Well, Brit, on the third full day of jury deliberations a jury of nine men, three women reached a verdict in phase one of the Zacarias Moussaoui sentencing. As the news was being read in the courtroom a court officer announced the results to reporters outside the courthouse. Here's the jury's answer to question one.

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EDWARD ADAMS, COURT SPOKESMAN: At least one victim died on September 11, 2001 as a direct result of the defendant's act. The jury answered, "Yes." As to count three, conspiracy to destroy aircraft. And count four, conspiracy to use weapons of mass destruction, the same questions were asked, and the jury answered them the same way they did as to count one.

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EMANUEL: So as a result of this verdict the jury has found Zacarias Moussaoui is eligible for the death penalty and execution is a possible sentence in this case. As the verdict was read, Moussaoui pulled out a yellow legal pad and scribbled some notes.

Jurors were scanning the audience and occasionally looked over at the only person charged in the U.S. in connection with the September 11th attacks. Once the jury and Judge Brinkema left the courtroom, Moussaoui yelled, quote, "You will never get my blood, God curse you all."

Family members of 9/11 victims have been watching this case closely. Rosemary Dillard who lost her husband on American Airlines Flight 77 offered this reaction.

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ROSEMARY DILLARD, 9/11 WIDOW: Yes. I am glad that this part is over. I think the jury had a hard thing to do. I think the jury did a darn good job.

(END VIDEO CLIP)

EMANUEL: Now, phase two of this case is scheduled to start on Thursday. 9/11 victims will get to testify as prosecutors make their case for the death penalty. The only other option is life in prison without parole. Brit?

HUME: Mike, thank you. The Supreme Court today declined to take the case of terror suspect Jose Padilla who sued to challenge the legality of his prior detention as an enemy combatant.

However the separate case involving criminal charges filed against Padilla late last year will still go forward in Miami. Fox News correspondent Megyn Kendall is here in the studio with more on what they have done and not done. Megyn?

MEGYN KENDALL, FOX NEWS CORRESPONDENT: Hi there, Brit.

It's a victory of the Bush administration which did not want the Supreme Court to take this case although the parties differ just over how big a win it is.

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KENDALL (voice-over): For at least the second time Jose Padilla's case was before the U.S. Supreme court and for the second time the Supreme Court punted, denying certiorari, or review.

JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: The fact that they didn't have it heard this particular time is a sigh of relief for the Bush administration. I think rightly so. It was a close case and when you are that case you would rather have cert denied.

KENDALL: Asked whether an America like Padilla arrested on U.S. soil can be deemed an enemy combatant and held by the military without formal charges, the high court declined to answer the question, saying it's hypothetical. Why? Because the government leader released Padilla from military custody, transferred him to a federal prison and charged him with unrelated crimes, a move Padilla's lawyers say was designed to end this appeal.

DONNA NEWMAN, JOSE PADILLA ATTORNEY: The government many, many times in this case tried to avoid the court or manipulate the circumstances so that they could avoid going before the court.

KENDALL: Padilla pressed the high court to hear his appeal anyway, pointing out he could still be relabeled an enemy combatant but the Supreme Court today refused to take the case and in an extremely rare move it explained why. Justice Kennedy joined by Justice Stevens and Chief Justice Roberts wrote, quote, "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."

The court did leave open the possibility of review if, for example, the government renews its enemy combatant charge. Padilla's lawyers called that a warning to the president.

NEWMAN: And I suggest it says we are putting you, the government, on notice that you are on a very short leash.

KENDALL: But administration supporters say that's wishful thinking.

SEKULOW: The administration's position was backed up today by the Supreme Court refusing to hear the case and letting the Court of Appeals decision stand which was a huge decision for the Bush administration.

KENDALL: The decision drew opposition from Justices Souter, Breyer and Ginsburg. Justice Ginsburg says the case raises, quote, "a question of profound importance regarding the president's wartime powers," and she wrote, "Nothing the government has yet done purports to retract the assertion of executive power Padilla protests."