Federal appeals court judges on Wednesday said they want more information from the government and lawyers for Jose Padilla before they order his transfer from a military brig to Justice Department custody.
Padilla, indicted last week by a federal grand jury in Florida, will remain in the Navy brig in South Carolina at least until Dec. 16 under a brief order issued by the 4th Circuit U.S. Court of Appeals in Richmond, Va.
A U.S. citizen, Padilla has been held in the brig for more than three years and, until last week, without charges, as an enemy combatant who the Bush administration alleged was 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 said it needs more information before it can order the transfer because the administration has put forth such different allegations. In September, the court upheld Padilla’s detention without charges.
The court is seen as conservative-leaning and the author of the opinion, Judge Michael Luttig, was among those considered by President Bush for the Supreme Court vacancies this year.
U.S. terror suspects’ rights debated
Padilla has appealed that ruling to the Supreme Court, asking justices to limit the government’s power to hold him and other U.S. terror suspects indefinitely and without charges. The timing of the indictment was viewed by Padilla’s lawyers and other legal scholars as a way for the administration to avoid a high court showdown over its detention policy.
Indeed, Attorney General Alberto Gonzales said last week that 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.
The appeals court order asks lawyers on both sides to address whether the court’s September ruling that was favorable to the government should be withdrawn now that the administration wants Padilla taken out of Defense Department custody.
The Justice Department did not immediately respond to requests for comment on the order.
Donna Newman, one of Padilla’s lawyers, said she still wants the Supreme Court to rule on the indefinite detentions. However, Michael Greenberger, a former Justice Department official who teaches at the University of Maryland, said that Padilla will have a harder time getting the Supreme Court to hear his case if the appeals court takes back its September ruling.