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.
“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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How unbelievably stupid our government has become.
As we sit contentedly sucking on the Madison Avenue slock, pretending we are the defenders of freedom and the right to privacy,etc. our government quietly sucks our life away. I remember Kent State and the revolt against the Viet Nam war. I guess I expect too much from this generation or has government refined its tools so that we neither know what is going on or are afraid of being the next "Padilla"?
The last seven years have in fact been truly frightening - not because of the act of terror with which we entered this new dark age, but due to the seige of freedom which this presidential administration has laid. There appears to be no limit, even this late in the president's final term, to the lengths to which the president and his cabal will go to squelch civil liberties in a mad, obsessive power grab.
Let's see: 1. Islamic Militant Extremist (anti-American) 2. Planned to attack the U.S. with a dirty bomb. 3. American. I wouldn't consider that an enemy combatant, more like a traitor and should get the death penalty.
This is a case that clearly spells out that the US has ceased to be a Republic and has become a decadent Empire, where its citizens can no longer be guaranteed legitimate rights and due process under its Constitution. The state of terror established under this Administration reaches its Courts and its juries. Citizens have been conditioned to believing they are really the victims of what the powers that are have conditioned them to think. It is really disgusting and unbelievable.
My mom had a bumper sticker that said "Freedom isn't free". It was intended as a pro war sticker, but it's meaning certainly applies to this agregious government action.
Let us not confine our outrage to the last seven years. The Reno justice department was every bit as willing to trash civil liberties as this one is.
Where is the dirty bomb? Prove that part. The paper to sign up for a nebulous Islamic project is not evidence for life inprisonment.
"From the President - There are citizens of the United States, I blush to admit,.... who have poured the poison of disloyalty into the very arteries of our national life.... Such creatures of passion, disloyalty, and anarchy must be crushed out. The Espionage Act pushed through by a cooperative congress, balked only at legalizing outright press censorship, despite the President calling this issue "an imperative necessity." The Postmaster General was given the right to refuse to deliver any periodical he deemed unpatriotic or critical of the administration. Soon the post office stopped delivery of virtually all publications and any foreign-language publication that hinted at less-than-enthusiastic support of the war. The Librarian of Congress was required to report the names of those who had asked for certain books and it also explained that the government needed to monitor "the individual casual or impulsive disloyal utterances." The law was pushed to be broad enough to punish statements made "from good motives or... [If] traitorous motives weren't provable." It became punishable by twenty years in jail to “utter print, write or publish any disloyal, profane, scurrilous, or abusive language about the government of the United States.” One could go to jail for cursing the government or criticizing it, even if what one said was true. Oliver Wendell Holmes wrote the Supreme Court opinion that found the act constitutional-arguing that the First Amendment did not protect speech if “the words used… create a clear and present danger.”"
These were some of the laws and efforts initiated by President Woodrow Wilson to conduct WW I.
Either I was not paying attention, very likely, or this was never covered or such is the History as we know it as presented by Schlesinger’s history and the generations of historians he mentored. And I might the minimal minds writing and those accessing the typical MJ post...
Since Clinton’s reign, the Saddam has WMD, was the perpetual mantra and the Clinton administration even initiated the goal/policy to remove Saddam for having such abilities and finally Bush and the not talking anymore and getting it done Conservatives did. But if your war with is with Bush and not those that did attack America, the Jihadist everywhere and anywhere, then one would be as inclined to the minimal rational displayed by these post and MJ articles.
To those who post in favor of the neocons; democracy, civil liberties, and freedom are fragile. Sounds like somebody drank the Jonestown punch and are hallucinating through fear being pushed like a drug by this administration. The bottom line is that NOBODY, including your dear President Bush is above the Constitution. Even Guiliani says he's a strict constructionist. You, Bush, or the other Princes CAN'T have it both ways. Either we protect civil liberties and let juries made their mark, or we believe all that the neocons say and we float into a dictatorship; after all that's why they are called the Right. Power is their quest and they are willing to grasp the rights of all of us on their way. Padilla is just one example. The abuses are so many that the forest v. trees metaphor becomes the best way to explain yours, and the American people's Attention Deficit. Step back, take a deep breath, and think critically about how the neocons have hijacked the country. People have alluded to the neocons as "conservative". They are not conservative. They have grown government, spent, spent, and spent more. Its out of control.
Was Clinton and the left wing intelligensia correct all the time. No, for heaven's sake, but Executive privilege means something new with this administration. When the smoke clears on this Machiavellian experience in our country, Cheney and Rove are the Princes, there will be a reform period unrivaled in our history.
All of these comments are coming from a "Recovering Republican". The assault on our law, our Constitution, has to end. We've gone nearly too far now and it will take generations to restore Constitutional law in this country once this bunch is OUT. You don't crush out dissent because there may just be some merit to their arguments, unless you continue to drink the Punch.
God Bless Us All.
I wish Donna Newman luck and I hope that Jose Padilla can recover some of his life. They are up against the biggest terrorists in the world today, the US Administration... opps... I guess I have just committed an offense. The current attitude is if you are not for them, they are against you. If you disagree with them, then you must be a threat...in fact, a terrorist! I really hope that what goes around comes around somehow. God works in mysterious ways and life has a funny way of turning the tables. The people complicit in taking away liberties of Americans (and other nationalities), torturing and tormenting them while justifyiing their sadistic actions with hystrionic charges are cunning, sly, calculating, shameless and without conscience... just the sort of people the founders of the United States were trying to escape from!
What's the problem? I assumed an emperor could do as they pleased!
When Bush managed to steal the 2000 election through all kinds of intimidation and illegalities, I knew we had suffered a coop against democracy from the inside, so I haven't really been surprised at anything this administration has done. I will actually be surprised if thousands of innocent political prisoners are NOT taken now before the next presidential 'election' to insure that this group behind bush continues to hold onto power. I am afraid to do very much myself - I am a coward - I am truly in awe of the people who are fighting 'the good fight' here in America, still. Iraq - that is just a ploy to deplete America's armed forces and bankrupt this country - we see now proof that Cheney knew it was a quagmire and state so only a few years before coming to power.
Best wishes and peace to you all.
Ha! Your laws and legal frameworks do not stand up to Bush Co. and Diebold Voting Systems. Good luck with your efforts. We are in big trouble.
“But what happened with Padilla was unparalleled. There’s never been a detention without charge.”
I see we have forgotten about the WW2 detention camps for Americans who resembled the Japanese...
From what this article states , it sounds like a bunch of Government B.S, as is most of this propaganda on the war on terror. As a criminal justice student and future? lawyer, i would love to see the evidence that the governmemt put forth to back thier claim. To me it seems they went after some low level dirtbag, and frabricated a story, to give their cause justification. If that is true, then our Constitution is in danger, and we sink ever so close to a more Fascist state! I would love to see the governments evidence so I could truly make an objective desicion on this case. Semper Fi, P.S the CONSTITUTION is the law of the land, there will be some interesting Supreme Court cases in the future, as I believe Bush is trying to pack the court, much like what FDR tried in the late 1930"s. Interesting times ahead I feel.
" naturally the common people do not want war,but after all. it is the leaders of a country who determine the policy, and it is always a simple matter to drag people along whether it is a democracy, or a fascist dictatorship, or a parliment or a communist dictatorship. Voice or no voice the people can always be bought to the biddings of the leaders. This is easy. All you have to do is tell them that they are being attacked, and denounce the pascifists as for their lack of patriotism and expossing the country to danger. It works the same in every country". Hermann Goering Hitlers Riech Marshall at the Nuremburg trials after WW II.
What you write is so true, the people of this country have become " sheeple" they just follow and believe what they are being told, rather then using thier god given brain to thuink things out for themselves.
Its so sad that this is going on in this country. I want to say much more but I won't.
Sounds like the former Soviet Union. KGB anyone?
WE had a "town meeting" with Rep. Ed. Markey (D-7, Massachusetts) Sunday afternoon in Framingham, Mass.
The topic was to be about impeachment of the Cheney/Bush administration.
What became clear over the 3-hour session, packed to the gills w/ mostly ardent supporters of impeachment, is that the Democrats are soooo concerned with recapturing the White House that they are more than willing to put aside their oaths of office--as Cheney and Bush have theirs-- to let Cheney and Bush escape from office in 2009 with their asses intact.
Virtually every question was answered: We can do all that (impeachment, a new, truly independent 9/11 commission, warrantless eavesdropping, the CIA torture tapes, waste-fraud-and-abuse in military contracting, the $3 Trillion or so that the Pentagon can't find/account for.
However, it will then be too late. Cheney will have sneaked out with his 3 Mosler stand-up safes (with all of the Iraq War plans he and his buddies created in January of 2001, perhaps some planning touching on the execution of the 9/11 attacks).
And Shrub will have shredded whatever documents he can, deep-sixed all of the "off-campus" e-mail, and so on.
So the Demican (as opposed to Republicrat) plan is this: Shrub and Darth get a free pass, because the Demicans do not want to risk waking nasties like Richard Mellen-Scaife, etc.., who might pour a few millions into the Republicrats' campaign efforts.
Markey, for one, did not feel that it was necessary to honor his oath of office to protect and defend the Constitution from enemies foreign and domestic. This is an oath he's repeated every two years some 16 times, in his 32 years in the House..
And here I thought that defending the Constitution, the condition precedent to being seated in the House of Rep.s was the very FIRST thing our members of Congress were supposed to be vigilant about. Guess not.
For more on the meeting, go to www.InkyWretch.com
Ooops... left out critical clause: (I should stop using run-on parentheticals)
We can do all that (examples) AFTER the election, when we've retaken the White House and have increased our majorities in Congress.
