WASHINGTON – Jose Padilla's transfer from a military brig to a civilian jail was unexpectedly delayed Wednesday by a federal appeals court, the latest twist in the legal fight over the Bush administration's policy on U.S. terror suspects.
In a brief order, a three-judge panel from the 4th Circuit U.S. Court of Appeals in Richmond, Va., demanded more information from lawyers on both sides before approving the transfer to the Justice Department.
The move indicates the three judges could reconsider their unanimous September ruling backing the Bush administration's contention that American citizens like Padilla may be denied access to courts and held indefinitely as "enemy combatants" if the government believes they are terror threats.
Padilla has appealed the ruling, saying the Bush administration has violated his rights to due process.
The administration charged Padilla last week in what many legal scholars saw as an attempt to avoid an uphill battle at the high court.
The appeals court judges said they want the government and Padilla's lawyers to explain whether their earlier ruling should be withdrawn following Padilla's indictment last week by a federal grand jury in Miami. Padilla's imminent transfer from a Navy brig in South Carolina to a federal jail in Miami was expected by both sides, but he probably will remain in military custody at least until Dec. 16, the last deadline for legal filings under the order.
The latest action by the judges complicates an already delicate legal situation for the administration, which wants to keep Padilla's case out of the Supreme Court, yet keep in place the strong appellate ruling justifying his more than three years in detention without charges.
"The question is, can they have their cake and eat it too?" said Carl Tobias, a law professor at the University of Richmond.
A decision by the Richmond court to withdraw its order would make it much harder for Padilla to pursue his appeal, but would also remove judicial backing for the detentions, Tobias and other law professors said.
Donna Newman, one of Padilla's lawyers, said Padilla wants the high court to rule on the indefinite intentions.
Justice Department spokeswoman Tasia Scolinos would not comment on the order Wednesday, other than to say the government would comply with it.
Last week, Attorney General Alberto Gonzales said the Bush administration will ask the Supreme Court to refuse even to hear Padilla's appeal because there no longer is an issue for the justices to resolve. Padilla had asked that the court either order the government to charge him with a crime or set him free.
The original deadline for the government's submission to the Supreme Court was Monday, but that deadline has been extended until Dec. 16, Justice Department spokesman John Nowacki said.
Padilla, who has been held in the brig since shortly after his arrest in 2002, was described by the Bush administration as a trained al-Qaida terrorist who plotted to blow up apartment buildings and detonate a radiological device in this country.
The indictment includes none of those allegations. Instead, it charges Padilla with being part of a North American terror support network that sent recruits and money abroad in the late 1990s.
The appeals court noted that difference in its order.
The court is seen as conservative-leaning. The author of the September opinion, Judge Michael Luttig, was among those considered by President Bush for one of the Supreme Court vacancies this year.
Michael Greenberger, a former Justice Department official who teaches at the University of Maryland, said he views the order as an attempt by the appellate judges to thwart Supreme Court consideration of the case.
"Their concern is that there are five justices on the court who might very well be concerned about the way this case has developed and might be prepared to address whether a U.S. citizen can be swept up on U.S. soil and held incommunicado for three years outside the U.S. criminal process," Greenberger said.
Scott Silliman, a Duke University law professor who specializes in national security, said the judges appear to be concerned about the integrity of the opinion upholding Padilla's detention as an enemy combatant. "There's an inconsistency between the criminal charges and the reasons the government presented to the court for his detention," Silliman said.