The legal defense team for Jose Padilla, a U.S. citizen designated an “enemy combatant” in the war on terrorism, on Friday afternoon urged the Supreme Court to order his release from a Navy jail, but not until it first considers his appeal at a private Conference on Jan. 13.

Resisting the Bush Administration plea on Wednesday to have the Court act swiftly to allow Padilla’s transfer to civilian custody to await trial on new criminal charges, Padilla’s attorneys said the government was seeking “an advisory opinion” on the underlying issue of court power to order transfers of prisoners while their cases are pending in the Supreme Court. The government’s application, Hanft v. Padilla, 05-A-578, was filed with Chief Justice John G. Roberts, Jr., but Padilla’s lawyers asked that the full Court act on it. (The government’s application is here and Padilla’s response is here.)

“Padilla is certainly eager to be released from the military brig where he has been held virtually incommunicado and in solitary confinement for the past three and a half years,” his attorneys said. But, “at the tail end of more than three years of nearly incommunicado military detention, Padilla is content to wait two more weeks in order to have his transfer approved through ordinary judicial processes, in the hopes that the government’s continuing threat to return him to the military prison will eventually be lifted once and for all.”

Padilla’s appeal challenging his designation as an “enemy combatant” and his prolonged detention in the brig in Charleston, S.C., is to be examined by the Justices at Conference on Jan. 13. (The appeal is Padilla v. Hanft, 05-533.) His attorneys on Friday suggested that the Court consider the transfer issue along with his petition for review and, if it grants review, “simultaneously authorize his release from military custody pursuant to the habeas petition….Indeed, the very order granting certiorari and setting a briefing schedule could order Padilla’s physical release from military custody….Were this Court to grant certiorari at the conference, it would have jurisdiction to order Padilla’s immediate release from military custody because that is part of the relief sought in the habeas petition.”

But, their reply went on, such a release “would not moot the case or otherwise impair this Court’s jurisdiction….Padilla’s transfer would not run afoul of the immediate custodian or territoriality requirements of the habeas statute.” Despite the government claim that the transfer would end military authority to detain him, Padilla’s lawyers said, “nothing prevents the President from reauthorizing Padilla’s military detention at any moment.” The government, the reply added, “has refused to provide any assurance that it will not again detain him as an enemy combatant if he is acquitted….Until the government proves that its wrongful conduct will not recur, this controversy is live.”

Padilla’s counsel suggest that his release from the brig on Jan. 13 would not be moot for an additional reason: release from Pentagon custody is not the only relief he is seeking in his appeal; he also wants the courts to rule that his designation and detention were unlawful in the first place.

The response launched a sharply critical attack on the government’s position on a rather obscure legal issue that the government has now injected into the case — the scope and use of Supreme Court Rule 36. That rule, though arcane to a lay reader, has come to play a central role in the constitutional separation-of-powers issues that the government says have been raised by a lower court’s refusal to promptly approve Padilla’s transfer out of Pentagon custody.

The Rule 36 aspect of the controversy, in short, has turned the Padilla case into an even more serious constitutional conflict than it already was.

Under Rule 36, prisoners are not to be transferred from one custodian to another while a habeas petition is pending at the Supreme Court. But the Rule does allow transfer upon application seeking that authority.

The government on Wednesday asked the Supreme Court to decide that Rule 36 does not apply to the special circumstance of President Bush’s order to the Pentagon to give up Padilla and transfer him to civilian custody for a criminal trial.

But Padilla’s lawyers responded Friday that the government is now trying to use Rule 36 as a new way to get Supreme Court review of a lower court opinion — that is, the Dec. 21 decision by the Fourth Circuit Court refusing to permit Padilla’s transfer, leaving it to the Supreme Court to decide his fate as it considers his pending appeal. It is that refusal that led the Justice Department to contend that major new questions over judicial authority over presidential acts have now arisen in the case.

“The government’s application,” Padilla’s response said, “asks this Court hastily to resolve what the Solicitor General describes as ’separation of powers questions of the first order,’ and it amounts to a request that this Court establish an entirely new procedural mechanism for review of certain decisions of the courts of appeals.”

If the government objected to the Fourth Circuit’s Dec. 21 decision, the normal way to challenge it in the Supreme Court would be to file a regular petition for review, or a request for a writ of mandamus, the response argued.

Instead, “the government asks this Court to use some ill-defined and novel basis of jurisdiction to issue an opinion ‘recognizing’ Padilla’s transfer and ‘clarifying’ that one of the Court’s rules does not apply to such transfer. What the government clearly wants is for this Court to reject the Fourth Circuit’s strong criticism of the government’s conduct. There is no legal precedent for such a request, and prudence alone would counsel declining the government’s hurried invitation to construct a new jurisdictional fount of appellate review and use the jurisdiction to resolve the allegedly fundamental constitutional issues that the government now presses. Padilla can and should be transferred quickly out of physical military cutody, but that transfer should be accomplished in accord with ordinary judicial processes…”

The response chastized the government for seeking such speedy action. “The only reason for the urgency of the government’s request would seem to be its hope that Padilla’s physical transfer will somehow moot the case.” (emphasis in original)

In discussing the government’s obvious discomfort with the scalding criticism by the Fourth Circuit of its recent handling of the Padilla case, Padilla’s lawyers suggested that most of that criticism was dicta, and appealing to the Supreme Court for special relief “is not an expeditious editing device by which a disgruntled party can seek to correct unfavorable dicta.” In any event, his lawyers said, the Fourth Circuit was quite correct in its criticism of government maneuvers to “manipulate” the courts, and the Supreme Court should “give substantial deference” to the lower court’s views on that issue.