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

                    KENNEDY, J., concurring

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 


   The petition for a writ of certiorari is denied. JUSTICE
SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER would
grant the petition for a writ of certiorari.
   JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and
JUSTICE STEVENS join, concurring in the denial of
certiorari.
   The Court’s decision to deny the petition for writ of
certiorari is, in my view, a proper exercise of its discretion
in light of the circumstances of the case. The history of
petitioner Jose Padilla’s detention, however, does require
this brief explanatory statement.
   Padilla is a United States citizen. Acting pursuant to a
material witness warrant issued by the United States
District Court for the Southern District of New York,
federal agents apprehended Padilla at Chicago’s O’Hare
International Airport on May 8, 2002. He was transported
to New York, and on May 22 he moved to vacate the war
rant. On June 9, while that motion was pending, the
President issued an order to the Secretary of Defense
designating Padilla an enemy combatant and ordering his
military detention. The District Court, notified of this
action by the Government’s ex parte motion, vacated the
material witness warrant.
   Padilla was taken to the Consolidated Naval Brig in
Charleston, South Carolina. On June 11, Padilla’s counsel
filed a habeas corpus petition in the Southern District of
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                   KENNEDY, J., concurring

New York challenging the military detention. The District
Court denied the petition, but the Court of Appeals for the
Second Circuit reversed and ordered the issuance of a writ
directing Padilla’s release. This Court granted certiorari
and ordered dismissal of the habeas corpus petition with
out prejudice, holding that the District Court for the
Southern District of New York was not the appropriate
court to consider it. See Rumsfeld v. Padilla, 542 U. S. 426
(2004).
  The present case arises from Padilla’s subsequent ha
beas corpus petition, filed in the United States District
Court for the District of South Carolina on July 2, 2004.
Padilla requested that he be released immediately or else
charged with a crime. The District Court granted the
petition on February 28, 2005, but the Court of Appeals for
the Fourth Circuit reversed that judgment on September
9, 2005. Padilla then filed the instant petition for writ of
certiorari.
  After Padilla sought certiorari in this Court, the Gov
ernment obtained an indictment charging him with vari
ous federal crimes. The President ordered that Padilla be
released from military custody and transferred to the
control of the Attorney General to face criminal charges.
The Government filed a motion for approval of Padilla’s
transfer in the Court of Appeals for the Fourth Circuit.
The Court of Appeals denied the motion, but this Court
granted the Government’s subsequent application respect
ing the transfer. Hanft v. Padilla, 546 U. S. ___ (2006).
The Government also filed a brief in opposition to certio
rari, arguing, among other things, that Padilla’s petition
should be denied as moot.
  The Government’s mootness argument is based on the
premise that Padilla, now having been charged with
crimes and released from military custody, has received
the principal relief he sought. Padilla responds that his
case was not mooted by the Government’s voluntary ac
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                    KENNEDY, J., concurring

tions because there remains a possibility that he will be
redesignated and redetained as an enemy combatant.
   Whatever the ultimate merits of the parties’ mootness
arguments, there are strong prudential considerations
disfavoring the exercise of the Court’s certiorari power.
Even if the Court were to rule in Padilla’s favor, his pre
sent custody status would be unaffected. Padilla is sched
uled 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.
   In light of the previous changes in his custody status
and the fact that nearly four years have passed since he
first was detained, Padilla, it must be acknowledged, has a
continuing concern that his status might be altered again.
That concern, however, can be addressed if the necessity
arises. Padilla is now being held pursuant to the control
and supervision of the United States District Court for the
Southern District of Florida, pending trial of the criminal
case. In the course of its supervision over Padilla’s cus
tody and trial the District Court will be obliged to afford
him the protection, including the right to a speedy trial,
guaranteed to all federal criminal defendants. See, e.g.,
U. S. Const., Amdt. 6; 18 U. S. C. §3161. Were the Gov
ernment to seek to change the status or conditions of
Padilla’s custody, that court would be in a position to rule
quickly on any responsive filings submitted by Padilla. In
such an event, the District Court, as well as other courts of
competent jurisdiction, should act promptly to ensure that
the office and purposes of the writ of habeas corpus are not
compromised. Padilla, moreover, retains the option of
seeking a writ of habeas corpus in this Court. See this
Court’s Rule 20; 28 U. S. C. §§1651(a), 2241.
   That Padilla’s claims raise fundamental issues respect
ing the separation of powers, including consideration of
the role and function of the courts, also counsels against
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                   KENNEDY, J., concurring

addressing those claims when the course of legal proceed
ings has made them, at least for now, hypothetical. This
is especially true given that Padilla’s current custody is
part of the relief he sought, and that its lawfulness is
uncontested.
  These are the reasons for my vote to deny certiorari.
