                            PUBLISHED
                                              Filed December 21, 2005

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


JOSE PADILLA,                            
                  Petitioner-Appellee,
                  v.
                                                  No. 05-6396
                                                (CA-04-2221-26AJ)
C. T. HANFT, U.S.N. Commander,
Consolidated Naval Brig.,
             Respondent-Appellant.
                                         

                              ORDER


   The motion filed by the government for authorization to transfer
petitioner from military custody in the state of South Carolina to civil-
ian law enforcement custody in the state of Florida is denied. The
suggestion that the court’s opinion of September 9, 2005, be with-
drawn is denied.

  Judge Luttig wrote an opinion in which Judge Michael concurred.
Judge Traxler wrote a separate opinion concurring in part.

                                         For the Court

                                         /s/ Patricia S. Connor
                                                 Clerk

LUTTIG, Circuit Judge:

   Before the court is the government’s motion pursuant to Supreme
Court Rule 36 for authorization to transfer Jose Padilla immediately
out of military custody in the State of South Carolina and into the cus-
tody of federal civilian law enforcement authorities in the State of
2                          PADILLA v. HANFT
Florida, together with its suggestion that we withdraw our opinion of
September 9, 2005, in which we held that the President possesses the
authority under the Authorization for the Use of Military Force to
detain enemy combatants who have taken up arms against the United
States abroad and entered into this country for the purpose of attack-
ing America and its citizens from within.

   Because we believe that the transfer of Padilla and the withdrawal
of our opinion at the government’s request while the Supreme Court
is reviewing this court’s decision of September 9 would compound
what is, in the absence of explanation, at least an appearance that the
government may be attempting to avoid consideration of our decision
by the Supreme Court, and also because we believe that this case
presents an issue of such especial national importance as to warrant
final consideration by that court, even if only by denial of further
review, we deny both the motion and suggestion. If the natural pro-
gression of this significant litigation to conclusion is to be pretermit-
ted at this late date under these circumstances, we believe that
decision should be made not by this court but, rather, by the Supreme
Court of the United States.

                                   I.

  The relevant events preceding the government’s motion are as fol-
lows.

   The government has held Padilla militarily for three and a half
years, steadfastly maintaining that it was imperative in the interest of
national security that he be so held. However, a short time after our
decision issued on the government’s representation that Padilla’s mili-
tary custody was indeed necessary in the interest of national security,
the government determined that it was no longer necessary that
Padilla be held militarily. Instead, it announced, Padilla would be
transferred to the custody of federal civilian law enforcement authori-
ties and criminally prosecuted in Florida for alleged offenses consid-
erably different from, and less serious than, those acts for which the
government had militarily detained Padilla. The indictment of Padilla
in Florida, unsealed the same day as announcement of that indictment,
made no mention of the acts upon which the government purported
to base its military detention of Padilla and upon which we had con-
                            PADILLA v. HANFT                             3
cluded only several weeks before that the President possessed the
authority to detain Padilla, namely, that Padilla had taken up arms
against United States forces in Afghanistan and had thereafter entered
into this country for the purpose of blowing up buildings in American
cities, in continued prosecution of al Qaeda’s war of terrorism against
the United States.

   The announcement of indictment came only two business days
before the government’s brief in response to Padilla’s petition for cer-
tiorari was due to be filed in the Supreme Court of the United States,
and only days before the District Court in South Carolina, pursuant
to our remand, was to accept briefing on the question whether Padilla
had been properly designated an enemy combatant by the President.

   The same day as Padilla’s indictment was unsealed in Florida, the
government filed with us a motion pursuant to Supreme Court Rule
36 for authorization to transfer Padilla to Florida, a motion that
included no reference to, or explanation of, the difference in the facts
asserted to justify Padilla’s military detention and those for which
Padilla was indicted. In a plea that was notable given that the govern-
ment had held Padilla militarily for three and a half years and that the
Supreme Court was expected within only days either to deny certio-
rari or to assume jurisdiction over the case for eventual disposition on
the merits, the government urged that we act as expeditiously as pos-
sible to authorize the transfer. The government styled its motion as an
"emergency application," but it provided no explanation as to what
comprised the asserted exigency.

   When we did not immediately authorize Padilla’s transfer as
requested, the government, rather than file its response to Padilla’s
petition for certiorari as scheduled, sought and received from the
Supreme Court an extension of time until December 16 within which
to file that response.

   Instead of simply granting the motion for immediate authorization
to transfer Padilla, we directed the parties to brief the question
whether, in light of the difference in the facts asserted to justify Padil-
la’s military detention on which our decision was premised and the
facts underlying the charges in Padilla’s indictment in Florida, our
opinion should be vacated in the event of Padilla’s transfer. In
4                         PADILLA v. HANFT
response to our request for briefing, the government has now taken
the position that our decision of September 9 should be withdrawn
entirely.

                                  II.

   Under Supreme Court Rule 36, the custodian of a habeas petitioner
whose case is pending before the Supreme Court "may not transfer
custody to another person unless the transfer is authorized under this
Rule." Rule 36 further provides that "[u]pon application by a custo-
dian, the court, Justice, or judge who entered the decision under
review may authorize transfer and the substitution of a successor cus-
todian as a party." There is no articulated purpose for this rule, the
rule does not specify a standard upon which a requested transfer
should be authorized or denied, and it is unclear to us what the appli-
cable standard ought to be or whether the rule even applies in a cir-
cumstance such as this. This said, to the extent our authorization is
needed, we believe there are two reasons for us to deny the govern-
ment’s motion, as well as its suggestion for vacatur of our opinion.

                                  A.

  First, the government’s actions since this court’s decision issued on
September 9, culminating in and including its urging that our opinion
be withdrawn, together with the timing of these actions in relation
both to the period for which Padilla has already been held and to the
government’s scheduled response to Padilla’s certiorari petition in the
Supreme Court, have given rise to at least an appearance that the pur-
pose of these actions may be to avoid consideration of our decision
by the Supreme Court.

   We are not in a position to ascertain whether behind this appear-
ance there is the actual fact, because the government has not
explained its decisions either publicly or to the court. The media has
variously reported that the government’s abrupt change in course was
prompted by its concern over Supreme Court review of our decision
and/or its concern for disclosure of the circumstances surrounding its
receipt of the information regarding Padilla’s plans to blow up build-
ings in American cities or of the identities and locations of the per-
sons who provided that information. In one instance, immediately
                           PADILLA v. HANFT                           5
after we had initially declined to act on the government’s transfer
motion, these concerns were detailed in the press and attributed to for-
mer and current Administration officials speaking on the condition of
anonymity. It was even reported that the government had considered
transfer and criminal prosecution of Padilla before its argument in this
court that military detention of Padilla was necessary in the interest
of national security. No such explanations have been provided to the
court, however.

   It should go without saying that we cannot rest our decisions on
media reports of statements from anonymous government sources
regarding facts relevant to matters pending before the court, nor
should we be required to do so or to speculate as to facts based upon
such reports. The information that the government would provide to
the media with respect to facts relevant to a pending litigation, it
should be prepared to provide to the court. Nevertheless, even if these
were the government’s concerns, neither concern would justify the
intentional mooting of the appeal of our decision to the Supreme
Court after three and a half years of prosecuting this litigation and on
the eve of final consideration of the issue by that court.

   As for the first of these reported concerns, we would regard the
intentional mooting by the government of a case of this import out of
concern for Supreme Court consideration not as legitimate justifica-
tion but as admission of attempted avoidance of review. The govern-
ment cannot be seen as conducting litigation with the enormous
implications of this litigation — litigation imbued with significant
public interest — in such a way as to select by which forum as
between the Supreme Court of the United States and an inferior
appellate court it wishes to be bound.

   As for the second reported concern, the means by which the gov-
ernment may have come by its information concerning Padilla, as
well as the current locations of any persons who might have provided
that information, are legally irrelevant to the appeal of our decision
now pending before the Supreme Court. These concerns would be rel-
evant, if at all, only at the hearing required by Hamdi v. Rumsfeld to
determine the legitimacy of the President’s designation of Padilla as
an enemy combatant. And if the government did fear "sensitive evi-
dentiary issues" that might arise in this hearing, it could have sought
6                            PADILLA v. HANFT
a stay from the district court, continued to pursue its argument before
the Supreme Court that the President possesses the authority from
Congress to detain persons such as Padilla, and transferred Padilla to
civilian law enforcement custody and initiated prosecution only after
final Supreme Court resolution of the pending appeal, whether favor-
able or unfavorable. Thus, in the end, concerns over evidentiary
issues could no more justify the government’s actions than could an
interest in avoiding Supreme Court review.

   That neither of these speculated reasons would have justified the
government’s actions is not to say that there are not legitimate reasons
for those actions. There may well be. For example, the government
could have come to believe that the information on which Padilla has
been detained is in fact not true or, even if true, is not sufficiently reli-
able to justify his continued military detention (although to serve as
legitimate basis for its actions the government would have had to
come to such belief based upon information or intelligence acquired
since the issuance of our decision). Of course, if the government had
come to so believe, it is expected that it would have informed this
court or the Supreme Court and then proceeded as it has. But any
legitimate reasons are not evident, and the government has not offered
explanation. Absent explanation, our authorization of Padilla’s trans-
fer under the circumstances described and while the case is awaiting
imminent consideration by the Supreme Court would serve only to
compound the appearance to which the government’s actions, even if
wholly legitimate, have inescapably given rise.

                                     B.

   Second, apart from the need to protect the appearance of regularity
in the judicial process, we believe that the issue presented by the gov-
ernment’s appeal to this court and Padilla’s appeal to the Supreme
Court is of sufficient national importance as to warrant consideration
by the Supreme Court, even if that consideration concludes only in a
denial of certiorari.

   For four years, since the attack on America of September 11, 2001,
a centerpiece of the government’s war on terror has been the Presi-
dent’s authority to detain militarily persons who, having engaged in
acts of war against the United States abroad, have crossed our borders
                           PADILLA v. HANFT                           7
with the avowed purpose of attacking this country and its citizens
from within — the kind of persons who committed the atrocities of
September 11. The President himself acted upon the belief that he
possessed such authority and that such authority was essential to pro-
tect the Nation from another attack like that of September 11 when
he designated Padilla an enemy combatant, declared that Padilla "rep-
resent[ed] a continuing, present and grave danger to the national
security of the United States," and directed the Secretary of Defense
to assume and maintain custody over Padilla. The government’s belief
in the indispensability to our national security of the President’s
authority to detain enemy combatants such as Padilla was reaffirmed
by the Attorney General when he stated at the time that our opinion
issued that "the authority to detain enemy combatants like Jose
Padilla plays an important role in protecting American citizens from
the very kind of savage attack that took place almost four years ago
to the day." And though we limited our holding to the circumstance
where the President detains persons who have associated with enemy
forces abroad, taken up arms on behalf of such forces, and thereafter
entered into this country with the avowed purpose of prosecuting war
against America on her own soil, we ourselves recognized the "ex-
ceeding importance" of the issue presented, even as so limited.

   On an issue of such surpassing importance, we believe that the rule
of law is best served by maintaining on appeal the status quo in all
respects and allowing Supreme Court consideration of the case in the
ordinary course, rather than by an eleventh-hour transfer and vacatur
on grounds and under circumstances that would further a perception
that dismissal may have been sought for the purpose of avoiding con-
sideration by the Supreme Court.

   Accordingly, for the reasons stated, we deny both the government’s
motion for authorization to transfer and its suggestion of vacatur of
our opinion of September 9, and thereby maintain for the Supreme
Court the status quo while it considers the pending petition for certio-
rari.

                                  III.

  Because of their evident gravity, we must believe that the conse-
quences of the actions that the government has taken in this important
8                          PADILLA v. HANFT
case over the past several weeks, not only for the public perception
of the war on terror but also for the government’s credibility before
the courts in litigation ancillary to that war, have been carefully con-
sidered. But at the same time that we must believe this, we cannot
help but believe that those consequences have been underestimated.

   For, as the government surely must understand, although the vari-
ous facts it has asserted are not necessarily inconsistent or without
basis, its actions have left not only the impression that Padilla may
have been held for these years, even if justifiably, by mistake — an
impression we would have thought the government could ill afford to
leave extant. They have left the impression that the government may
even have come to the belief that the principle in reliance upon which
it has detained Padilla for this time, that the President possesses the
authority to detain enemy combatants who enter into this country for
the purpose of attacking America and its citizens from within, can, in
the end, yield to expediency with little or no cost to its conduct of the
war against terror — an impression we would have thought the gov-
ernment likewise could ill afford to leave extant. And these impres-
sions have been left, we fear, at what may ultimately prove to be
substantial cost to the government’s credibility before the courts, to
whom it will one day need to argue again in support of a principle of
assertedly like importance and necessity to the one that it seems to
abandon today. While there could be an objective that could com-
mand such a price as all of this, it is difficult to imagine what that
objective would be.

  For the reasons stated, the government’s motion to transfer and the
suggestion that our opinion of September 9, 2005, be vacated are
denied.

TRAXLER, Circuit Judge, concurring in part:

  I do not think Rule 36 is applicable to this situation. I agree with
my colleagues that we should not vacate our earlier opinion.
