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U.S. citizen Jose Padilla’s legal challenge to his three-year stay in a military jail without charges should be dismissed because he now stands accused of a crime, the Justice Department told a federal appeals court Friday. The filing with the 4th U.S. Circuit Court of Appeals in Richmond, Va., is an attempt by the administration to avoid a Supreme Court showdown over its controversial policy of detaining U.S. terror suspects indefinitely and without charges. The government refused to rule out that it could reclassify Padilla in the future as an “enemy combatant,” which would again deprive him of most rights granted to criminal defendants. “In that unlikely event, petitioner would have ample opportunity to challenge any such military custody at that time,” the government said in legal papers signed by Solicitor General Paul Clement. Padilla’s lawyers declined to comment Friday, but they have said they want the Supreme Court to rule on the administration’s power to detain him indefinitely and without charges, regardless of his current status. The government wants the appeals court to approve Padilla’s transfer from military custody to a federal civilian jail in Miami, where he was indicted last month on charges that he was part of a North American terrorist support network that sent money and fighters abroad. The indictment contained none of the spectacular allegations that Padilla plotted to set off a radiological bomb and blow up apartment buildings in this country that led President Bush to declare him an enemy combatant shortly after his arrest at O’Hare International Airport in Chicago in 2002. Since then, Padilla has been held in a U.S. Navy brig in South Carolina. He was denied access to a lawyer for much of his stay. Lawyers for Padilla have challenged the administration’s ability to hold him indefinitely and without charges. A three-judge panel on the conservative-leaning 4th Circuit in September unanimously upheld the detention. Padilla has appealed to the Supreme Court. The appellate judges delayed the transfer, saying the facts alleged in the indictment were very different from claims made to support the designation as enemy combatant. Justice Department officials have said they continue to believe the earlier claims are accurate. But Clement told the court that prosecutors may limit criminal charges, particularly when a broader indictment would have raised constitutional issues about the interrogation of Padilla without a lawyer and forced the government to rely on accounts offered by other terror suspects whose detention the administration has not even acknowledged. In any event, Padilla had asked to be set free or charged, and he has now gotten what he asked for, leaving no legal issue to resolve, the government said. The appellate judges are well within their discretion to withdraw their September ruling, the government said. Such a decision could make it more difficult for Padilla to ask the Supreme Court to intervene since technically there would be no ruling to appeal. Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.

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