Jose Padilla has filed a petition for writ of certiorari, seeking review of the Fourth Circuit’s judgment upholding his detention by military authorities. See Padilla v. Hanft, United States Navy Commander, Consolidated Naval Brig, No. 05-533, now pending before the Court (filed Oct. 25, 2005). On November 22, 2005, the Government filed a motion before the Fourth Circuit, seeking approval to transfer Padilla from military custody to the custody of the warden of a federal detention center in Florida, to face criminal charges contained in an indictment filed November 17, 2005. See this Court’s Rule 36.1 (“Pending review in this Court of a decision in a habeas corpus proceeding . . . the person having custody of the prisoner may not transfer custody to another person unless the transfer is authorized under this Rule”). Padilla agreed that the transfer should be approved. The Fourth Circuit denied the request, citing concern that transfer might affect this Court’s consideration of the pending petition for writ of certiorari and concluding that the “decision should be made not by this court but, rather, by the Supreme Court of the United States.” No. 05-6396 (CA4, Dec. 21, 2005), p. 3.
The Solicitor General has now filed with this Court an Application Respecting the Custody and Transfer of Jose Padilla, seeking the same authorization previously sought from the Court of Appeals for the Fourth Circuit. Padilla has filed a response, arguing instead that the Court should delay his release from military custody and consider his release along with his petition for writ of certiorari. The Government’s application, presented to The