Jose Padilla—Transfer to DOJ Delayed

As if being held for three years in solitary confinement as an enemy combatant, and then being charged for criminal acts which are substantially unrelated to the supposed reasons for the captivity weren’t bad enough. Now it turns out that Jose Padilla’s transfer from his military brig to the Department of Justice has been unexpectedly delayed.^[1]

The 4th Circuit Court of Appeals has declined to authorize the transfer of Mr. Padilla, whose criminal indictment we discussed here, until the government “elaborates on ‘the different facts that were alleged by the President to warrant [Mr.] Padilla’s military detention’ as compared with ‘the alleged facts on which [he] has now been indicted.”^[2] If the Court is not satisfied with the government’s answer, it could block the transfer entirely, or even vacate its controversial opinion, which we discussed here, that affirmed the president’s power to detain citizens as enemy combatants.^[3]

The order apparently notes that the Court would like both the government and Mr. Padilla’s attorneys “to explain whether [the Court’s] earlier ruling should be withdrawn following [Mr.] Padilla’s indictment last week.”^[4]

The full significance of the Court’s order is, at this time, unclear, but it certainly seems to be made out of some sort of irritation with the Bush administration.^[5] In any event, Mr. Padilla will remain in military custody until at least December 16, which is the last deadline for legal filings under the order.^[6]

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[1] Jerry Markon, Appeals Court Balks at Approving Padilla Plan, Wash. Post, Dec. 1, 2005, available here.
[2] Id.
[3] Id.
[4] Mark Sherman, Padilla’s Transfer to Jail Delayed by Court, Chicago Tribune, Dec. 1, 2005, available here.
[5] See Id.; Neil A. Lewis, Terror Trial Hits Obstacle, Unexpectedly, NY Times, Dec. 1, 2005, available here; Markon, supra note 1.
[6] Sherman, supra note 4.