Jose Padilla: Overdue Process

A terror detainee gets a lifeline: defense lawyer Donna Newman.

Before the invitations to appear on CNN and Court TV, before the interview with Diane Sawyer, before getting the rock star treatment at Yale Law School, and before the day she appeared in front of the U.S. Supreme Court, Donna Newman was just a fiftysomething New Jersey defense lawyer appointed by the court to defend another unremarkable client. Then came the Monday morning in June 2002, when her cell phone rang as she was scurrying to a hearing. The caller, an assistant U.S. attorney who was prosecuting one of her clients, had some startling news: The young man she was representing had attracted the attention of none other than President George W. Bush.

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“He said, ‘The president has declared your client an enemy combatant,’” Newman recalls. “I had no idea what he was talking about. I thought he was making a joke.”

Like hundreds of other Muslim men, Jose Padilla had been picked up as a material witness to possible acts of terrorism. Unlike them, Padilla was an American citizen, stopped at Chicago’s O’Hare International Airport and held in a prison in Manhattan, where Newman met with him several times in the month after his arrest. Up against a deadline to either charge him or let him go, the government came up with a new option: It labeled Padilla an enemy combatant, announcing with much fanfare that he had been part of an Al Qaeda plot to explode a “dirty bomb.” A military plane whisked him to a Navy brig in South Carolina—and into a legal black hole where he would be held indefinitely without being charged with a crime.

With that, Newman was swept into one of the most Byzantine episodes in the war on terror. Padilla’s case traveled through multiple federal district and appellate courts, with the government shifting strategies so frequently that even the conservative 4th U.S. Circuit Court of Appeals expressed its irritation. After Padilla’s transfer to military custody, Newman would not be allowed to meet with him again for nearly two years. But while Padilla remained in the dark, his case became a legal cause célèbre. Newman’s team—which grew to comprise six attorneys, including a Manhattan criminal defense lawyer and a Stanford constitutional scholar—worked away, challenging the government’s right to declare an American captured on American soil an enemy combatant. “The goal was to get Padilla back into the criminal justice system,” she says.

The case gave her a sobering perspective on how those in power respond during intense periods of fear. “This is not the first time this kind of clamping down on civil liberties has occurred as a result of ‘terrorism,’” she says, sitting in her office. “But what happened with Padilla was unparalleled. There’s never been a detention without charge.”

At 58, Newman has a chatty, friendly demeanor, though her voice rises when talk turns to the subject of due process. She finished college in the late ’60s, when few women went to law school (she’d originally trained to be a speech therapist). She had the instincts of a defense lawyer—“I wasn’t ever easily frightened by things”—and a youthful adulation for Perry Mason. But she took civil liberties for granted, and the gritty realities of criminal defense work required more deal cutting than idealism. She was accustomed to defending clients facing securities fraud charges or contract disputes—cases that sustained her solo practice but were hardly the stuff of ripped-from-the-headlines TV dramas.

To prepare her team’s argument, Newman gave herself a crash course in military law and became obsessed with the case’s historical precedents. The prosecutor who had phoned to tell her of Padilla’s enemy combatant status suggested she read up on a World War II case involving Nazi saboteurs. She recalls that he said, “If you read that, you’ll understand what we’re talking about.” She did, and dismissed its relevance. “I don’t care if they stand on their head and spit a nickel, it was completely different, factually and procedurally,” she says.

But she found other historical antecedents that applied more directly to Padilla and to the delicate balance between liberties and security. She looked up obscure federal statutes and researched cases from the War of 1812 and the Civil War. “I can’t believe I’m forgetting this one—it was in my speeches. This M guy,” she says, irritated that she can’t recall a citation that used to be at her fingertips. Talking on her cell phone while navigating Manhattan traffic, she interrupts her discussion of the Magna Carta to order a drive-through chicken Caesar salad. “I went back and really looked at how the legal system of this country developed,” she says. “I got a much better sense of the fights that were fought.”

In June 2004, the Supreme Court left the case undecided due to procedural issues; a second round before the justices was scheduled for last fall. The stakes were high for the government: If it lost its argument for Padilla’s extraordinary status, its assertion of executive power in the name of fighting terrorism would suffer a blow. Hoping to sidestep such an outcome, and nearing a court deadline, government lawyers abruptly declared that Padilla would no longer be held as an enemy combatant. Gone was any mention of a dirty bomb. Instead, he was charged with providing material support to terrorists. The truly Kafkaesque part of Padilla’s travails was over. Finally, Newman’s client (whom she describes, in the sympathetic language of a good defense lawyer, as “rather quiet” and not “seeming to be violent at all”) could travel through the criminal justice system like any other defendant.

Today, Jose Padilla sits in a Florida jail awaiting trial and has a new set of local lawyers. Newman still hopes that the Supreme Court will agree to hear her argument that his original enemy combatant designation was unconstitutional. The government, she says, might decide on a whim to label him—or any other American—a combatant again. But even if the government doesn’t repeat that tactic, she wants to go to court to defend a principle. “Even in America, you can’t take freedom for granted. You have to fight.”

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