In their filing, Newman and Patel cited the Bush administration's interpretation of the president's war powers to justify its decision to hold Padilla -- until recently -- without charges in a military brig in South Carolina.

Padilla's lawyers also said President Bush abused his war powers authority by approving warrantless surveillance of conversations between people in the United States and abroad who had suspected terrorist ties.

Such developments "underscore the need for this court to address the fundamental constitutional questions presented by this case," the lawyers wrote.

"The government continues to defend this sweeping view of the president's power to substitute military law for the rule of law and seeks to expand it further, arguing that the very authorities that it says justify the indefinite detention without charge of citizens also justify widespread spying on citizens without judicial warrant or Congressional notification," Padilla's lawyers said.

The stinging criticism leveled by the conservative Fourth Circuit -- criticism that impliedly questioned the integrity of the Bush administration -- is difficult to refute, and the SG would clearly prefer to duck the merits of Padilla’s claim that his detention has been unlawful. The Justice Department flip-flopped on Padilla because it didn’t want to defend in the Supreme Court the president’s claim to supreme power. The SG’s defense -- look, we finally gave Padilla what he asked for, and anyway, we get to do what we want even if it seems we’ve been lying to you about Padilla all these years -- is unconvincing.

The government’s request has gone to Chief Justice Roberts, who will likely punt an issue of this significance to the full Court. Will Bush’s decision to ignore wiretap laws influence the Court as it ponders the government’s request to look the other way in Padilla’s case?