Lawyers for Jose Padilla, a US citizen facing terrorism charges, has accused Washington of playing games with the nation's courts by repeatedly changing its reasons for holding the former Chicago gang member as an "enemy combatant".
Padilla's attorneys, Andrew G Patel and Donna R Newman, wrote on Friday: "Though its factual allegations have changed with the prevailing winds, the government's actions have been strategically consistent.
"At every turn, the government has sought to manipulate the federal courts' jurisdiction and evade judicial review."
In a filing with the Richmond-based 4th Circuit Court of Appeals, Patel and Newman urged the court to transfer Padilla, who has been held for three-and-a-half years, from US military custody to civilian law enforcement authorities in Miami.
Last month, a grand jury in Miami charged Padilla (pronounced puh-DILL-uh) with being part of a North American terrorism support cell that raised money and recruited fighters to wage violent jihad outside the United States.
"At every turn, the government has sought to manipulate the federal courts' jurisdiction and evade judicial review"
Andrew G Patel and Donna R Newman, Padilla's attorneys
Padilla's transfer is being delayed while the 4th Circuit reviews the responses it has sought from lawyers on both sides since the grand jury's indictment. The appeals court wants to know what effect the indictment has on a ruling it made in September that gave George W Bush, the president, wide berth in detaining US citizens indefinitely without charges.
Patel and Newman urged the appeals court to wait to rule on whether to void its September decision until the Supreme Court decides whether to hear Padilla's constitutional challenges to the president's wartime powers to hold US citizens without charges.
Dirty bomb charge
The grand jury's charges differed from allegations used previously by the administration in federal courts in New York and Virginia and before the Supreme Court to justify Padilla's detention at a US military jail in South Carolina.
In 2002, John Ashcroft, who was then the attorney-general, had alleged that Padilla was part of a terror plot to detonate a radioactive device known as a "dirty bomb" after Padilla was arrested at O'Hare airport, Chicago, on his return from Afghanistan.
President Bush has powers to
detain US citizens indefinitely
Last year, on the eve of Supreme Court rulings on whether President Bush has the power to detain US citizens indefinitely without charges, James Comey, then the deputy attorney-general, had said that senior al-Qaida leaders had assigned Padilla to blow up apartment buildings in New York, Washington or Florida after the terrorist attacks of 11 September 2001.
A Defence Department summary released by Comey said Padilla travelled to Pakistan in 2000 and filled out an application to attend a terrorist training camp. At a camp in Afghanistan, Padilla allegedly received weapons and explosives training and the attention of al-Qaida leaders.
Among them were Mohammed Atef, the terror network's military chief who was killed during the US invasion of Afghanistan in 2001, and Khalid Sheikh Mohammed, the alleged mastermind of the 11 September attacks.
Administration lawyers were supposed to file a response on Friday to Padilla's constitutional challenge in the Supreme Court. They are expected to urge the court to reject Padilla's appeal by arguing that his challenge to presidential authority is irrelevant now that he has been indicted.
The grand jury's charges led to an unexpected twist in the case when the 4th Circuit asked lawyers for both sides to weigh in on whether the new development should void a ruling by the appeals court in September that was widely considered a significant victory in the administration's legal war on terrorism.
"This court's opinion will stand in history not for its legal principles, but as a blow to the integrity of the judicial process and a mark of injustice"
Patel and Newman said the administration's "egregious conduct and gamesmanship" requires the appeals court to vacate its September decision. Otherwise, the lawyers wrote, "this court's opinion will stand in history not for its legal principles, but as a blow to the integrity of the judicial process and a mark of injustice".
In their response to the appellate judges, which was filed last week, administration lawyers said Bush didn't have to tell the courts everything he knew, or suspected, about Padilla.
They also said the administration was willing to walk away from the September decision. The case is over, the lawyers told the appeals court, and it's appropriate for the decision to be withdrawn.
Besides that, they wrote, Padilla got what he wanted: To be charged with a crime.