                  Cite as: 547 U. S. ____ (2006)             1

                    GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES
   JOSE PADILLA v. C. T. HANFT, UNITED STATES

       NAVY COMMANDER, CONSOLIDATED 

                   NAVAL BRIG

   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

   STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

               No. 05–533.   Decided April 3, 2006 


   JUSTICE GINSBURG, dissenting from the denial of
certiorari.
   This case, here for the second time, raises a question “of
profound importance to the Nation,” Rumsfeld v. Padilla,
542 U. S. 426, 455 (2004) (STEVENS, J., dissenting): Does
the President have authority to imprison indefinitely a
United States citizen arrested on United States soil dis
tant from a zone of combat, based on an Executive decla
ration 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. Ibid. 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. A party’s voluntary cessation does not
make a case less capable of repetition or less evasive of
review. See Spencer v. Kemna, 523 U. S. 1, 17 (1998) (the
capable-of-repetition exception to mootness applies where
“(1) the challenged action [is] in its duration too short to be
fully litigated prior to cessation or expiration, and (2) there
[is] a reasonable expectation that the same complaining
party [will] be subject to the same action again” (emphasis
added)) (citations and internal quotation marks omitted);
cf. United States v. Concentrated Phosphate Export Assn.,
Inc., 393 U. S. 199, 203 (1968) (party whose actions
2                    PADILLA v. HANFT

                   GINSBURG, J., dissenting

threaten to moot a case must make “absolutely clear that
the allegedly wrongful behavior could not reasonably be
expected to recur”); United States v. W. T. Grant Co., 345
U. S. 629, 632–633 (1953) (voluntary cessation of illegal
activity will not render case moot unless there is “no rea
sonable expectation that the wrong will be repeated”
(internal quotation marks omitted)). See also Lane v.
Williams, 455 U. S. 624, 633–634 (1982) (applying “capa
ble of repetition, yet evading review” in a habeas case
(internal quotation marks omitted)). Satisfied that this
case is not moot, I would grant the petition for certiorari.
