Scalia, Alito, and Thomas did not comment

The Roberts court, begging to be fleeced by the Cheney administration's three-card monte game, gives it another pass. When even Luttig is outraged by the administration's power grabs and mooting of a serious constitutional question, it's no wonder the three amigos would only silently go ahead with Kennedy's argument that Padilla has already gotten the "relief" he sought.

Kennedy, joined by Chief Justice John G. Roberts, Jr., and John Paul Stevens, conceded that the case raises "fundamental issues respecting the separation of powers" between the courts and the executive branch.

He also said that Padilla properly "has a continuing concern that his status might be altered again," considering that he has already been held for four years in two different guises.

But "that concern . . . can be addressed if the necessity arises," Kennedy said. "The Government's mootness argument is based on the premise that Padilla, how having been charged with crimes and released from military custody, has received the principal relief he sought," Kennedy wrote.

"Even if the Court were to rule in Padilla's favor," Kennedy went on, "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."

Justices Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer dissented from the action today.

"This case . . . raises a question of profound importance to the Nation," Ginsburg wrote. "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' "?

"It is a question the Court heard, and should have decided, two years ago," she said. "Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.

"Although the Government has recently lodged charges against Padilla in a civilian court, nothing prevents the Executive from returning to the road it earlier constructed and defended," she wrote. "A party's voluntary cessation does not make a case less capable of repetition or less evasive of review."

At this point, what's Padilla even charged with? Like WMD in Iraq, his "radiological device" was never found.