For its part, the administration is urging the Fourth Circuit to do just the opposite: to vacate its September decision that upheld presidential authority to keep Mr. Padilla in open-ended detention and to "recall the mandate," depriving the decision of any legal force.
Since the Fourth Circuit had handed the administration a sweeping victory in that decision, the request would seem to run counter to the administration's interests. But the request, if granted, would have the effect of ensuring that the Supreme Court would be unable to review Mr. Padilla's case because there would be no decision to review.
That amounts to "the extraordinary action of interfering with the Supreme Court's consideration of the case" while Mr. Padilla's appeal is pending, his lawyers told the Fourth Circuit. The government should not be allowed to claim the case is moot, the brief said, because the administration has not withdrawn Mr. Padilla's designation as an enemy combatant and has refused to foreclose the prospect of sending him back to military detention if he is acquitted in a civilian trial.
The lawyers told the Fourth Circuit that in its treatment of Mr. Padilla, "the government has repeatedly altered its factual allegations to suit its goals, and it has actively manipulated the federal courts to avoid accountability for its actions."