Will The Government Lose The Padilla Precedent?

The U.S. Court of Appeals that ruled in the government's favor in the Jose Padilla enemy combatant case is not impressed that the government lawyers who had told them that he was a threat to society who could return to the battlefield and required military detention rather than a civilian jail have now decided that a civilian jail is just fine, shortly after winning.

A federal appeals court on Wednesday delayed the transfer to civilian jail from a Navy brig of Jose Padilla, a U.S. citizen charged by the government last week after being held by the military for more than three years as a suspected enemy combatant.

A three-judge panel of the U.S. Court of Appeals in Richmond, Virginia, ordered the government to file briefs explaining the request for Padilla's transfer out of military custody into the charge of law enforcement officials in Florida, where he was charged.

The panel said the government must explain why it used different facts to justify Padilla's military detention from those included in last week's indictment that charged Padilla with conspiracy to murder and aiding terrorists abroad.

The panel also asked whether its September 9, 2005, opinion -- which ruled the government had a right to hold Padilla as an enemy combatant without being charged -- should be voided as a result of the request for transfer and the different facts now being presented. . . . .

The appeals court panel said the government had to file a brief explaining the changes in how it was handling Padilla by December 9. Padilla's lawyers were given until December 16 to file their brief with the court.