Not so fast...

We earlier discussed how the Justice Department was trying to avoid a showdown on the Presidential powers debate in the Supreme Court re Padilla by charging him here in the Southern District of Florida. The Government counted on the fact that the Fourth Circuit would approve of the transfer to this district to face charges. But the Fourth wasn't so happy about the fact that its ruling was based on allegations far more sweeping than those alleged by the Government in its indictment here.

Judge Luttig has asked for the following question to be briefed: "Whether, if the government's motion is granted, the mandate should be recalled and our opinion of Sept. 9, 2005, vacated as a consequence of the transfer and in light of the different facts that were alleged by the President to warrant Padilla's military detention and held by this court to justify the detention, on the one hand, and the alleged facts on which Padilla has been indicted, on the other." The government has until Dec. 9 to file its new brief on that issue. Padilla's lawyers are to file their brief a week later, by Dec. 16.

Lyle Denniston has this analysis over at ScotusBlog.com:

The Fourth Circuit had upheld Padilla's detention on the basis of more serious claims of wrongdoing than the charges contained in the new criminal indictment. The government contended, in seeking to justify his detention, that he had been
planning to release a radioactive bomb in a terrorist plot in this country. The
new indictment levels charges of joining in a terrorist "cell" of activity to support global terrorism efforts. The indictment describes a quite minor role for Padilla.
If the government has no interest in pursuing the more serious charges, for whatever reason, the Fourth Circuit may believe that its September ruling has been undercut. This will become clear after it acts following the new briefing. In the meantime, the Justice Department has until Dec. 16 to file its response to Padilla's appeal to the Supreme Court. The Circuit Court's order may complicate that proceeding, because it will not have ruled on the transfer motion, and the possible withdrawal of its September ruling, by Dec. 16. The government, of course, would be free to ask for a further extention of time to file its response.

No word yet on how this will affect the ongoing Southern District case.