Sticking Up for the 'Dirty Bomber'

A Lawyer's Unpopular Cause Could Save Civil Liberties

Donna Newman is the sort of person America's folksy President might like. She's been happily married for 34 years, raised two children, and built a solid law practice on humble roots and cheery grit. Like George W. Bush, she's gym-fit and quick to quip, with her own hometown drawl, Brooklyn style, and a penchant for talking complex law in lay lingo. ("Kinda cute," she calls one procedural twist.)

But since June she's been putting in 15-hour days for weeks at a stretch, trying to prove the president dead wrong. He broke the law, she claims, in labeling American Jose Padilla—the so-called dirty bomber—an "enemy combatant" and ordering him into indefinite military detention.

She has wrestled with Bush's lawyers in a series of court filings that U.S. District Court Chief Judge Michael Mukasey has waited to review as a whole before ruling, which he's expected to do within the month. Previously an obscure if successful criminal defense lawyer, she has recently appeared on national television and seen her name—and age, to her horror—blown up in headline type in the pages of Time. It is not too great a stretch to imagine that she is heading for her first appearance before the U.S. Supreme Court.

The whirlwind began on June 9, when the commander in chief ordered that Padilla be transferred from a regular prison in Manhattan into military custody. Until then, Padilla had been held as a noncriminal witness in the ongoing September 11 probe, having been arrested May 8 in Chicago and taken to New York for questioning. Newman, who like many private practitioners elects to serve periodically as a $90-an-hour court-appointed defender, was assigned to Padilla then.

The day after the president issued his order, Attorney General John Ashcroft, via television from Moscow, accused Padilla of meeting with senior Al Qaeda officials and "exploring a plan to build and explode a radiological dispersion device, or dirty bomb, in the United States."

Newman received no notice of Padilla's transfer to military custody. When a government lawyer finally called her with the news, she thought he was kidding. "Just because he's a prosecutor doesn't mean he can't have a sense of humor."

But the government had thrust her into a quite serious fight. Padilla is the only American civilian ever to be arrested on U.S. soil and held by the military without a charge, a court hearing, or access to his lawyer. Unlike Yaser Hamdi, the other U.S. citizen imprisoned under similar restrictions, or "American Taliban" John Walker Lindh, Padilla was not captured in a war zone aligned with enemy forces. He was arrested at Chicago's O'Hare airport, disembarking from a commercial flight he had taken with his real passport. Newman claims he was on his way to visit his son.

While Padilla—a jailhouse Muslim convert with a rap sheet listing murder—is hardly America's sweetheart, his fate carries implications for all Americans. Newman has largely avoided saying so, fearful of grandstanding. But in an interview last week, she voiced the stakes that have prompted the ACLU and other civil rights groups to file papers in Padilla's name.

To the average American, says Newman, a Bush win would mean: "You can be locked up for the rest of your natural years based on [the president's] say-so. Based on your neighbor, who doesn't like you and reports you. Based on a combination of circumstances that together don't look too good. And you wouldn't have a chance to say, 'Hey, wait a minute. Let me explain.' "

Two days after the military seized Padilla, Newman launched a habeas corpus bid that, no matter how it ends, is going down in history. Along with co-counsel Andrew Patel, whom the judge appointed to share the monstrous workload, she scrambled to master aspects of constitutional, international, and martial law, calling scholars around the country and consulting every defense veteran she knew. Her aim: to get Padilla charged (and therefore into court), or released.

All this effort while the government claims she has no business doing any of it, telling the judge that Newman's 20 hours of meetings with Padilla when he was still in civilian prison don't amount to enough of a relationship. Indeed, Padilla likely knows nothing of her fight. Newman has sent him mail, but, she says, a Defense Department lawyer "gave me the impression that [Padilla] would not receive it."

Asked about mail access and other detention conditions, Defense Department spokesperson Lieutenant Commander Barbara Burfeind neither confirmed nor denied Newman's claim, but said no change is anticipated in Padilla's current incommunicado status. While the Justice Department is arguing the Padilla case in court, a spokesperson said, "He no longer belongs to us," and referred press questions to Defense.

Indeed, the Bush administration claims that a one-page presidential order, a six-page Defense Department memo, and its good word are enough to justify Padilla's indefinite military detention during these dangerous times. Counters Newman, " 'Trust me' cannot be sufficient."

The court papers on both sides are legalistically complex, referencing civilian and military cases from the Civil War to the present. But Newman's main point is simple: The president is breaking the law. His order plunging Padilla into military detention was "an illegal act of unbridled Executive power," she wrote the court, one forbidden by the Constitution and not permitted under any of the special measures Congress has passed since last September 11. She quotes James Madison on the danger of tyranny when a government branch claims undue power, writing, "We should take heed."

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