A Lifetime in Limbo

Why the "Dirty Bomber" case threatens everyone's rights

He disappeared down the rabbit hole.

A year ago this week Jose Padilla, nabbed while on a visit to Chicago, was taken into military custody and sealed off from the rest of the world. To date, the government continues to deny the Brooklyn native a right all Americans take for granted: to tell his side of the story.

The public was told back then that his banishment was their salvation. Attorney General John Ashcroft, the nation's top law enforcer, revealed in a dramatic announcement via satellite from Moscow, "We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb." The day before, June 9, 2002, President George W. Bush had deemed Padilla so grave a threat to national security that he ordered him held incommunicado until the war on terrorism was over.

The administration says it needs absolute authority when so much seems to be at stake. This is typical of presidents in wartime. But in this war the number and origin of the enemy is unknowable, and decisive victory almost impossible to envision. Padilla could be looking at a lifetime in limbo, deprived of rights that Americans consider fundamental. On the anniversary of his spectacular detention, the battle to get Padilla any kind of hearing, or even access to a lawyer, continues. Meanwhile, his case goes largely unnoticed.

Yet a year of developments in other terrorism-related cases has produced more reasons than ever to question whether the chief executive must simply be trusted—seemingly indefinitely, in this new era of war—to know best. While Jose Padilla, a violent ex-con, may not inspire much empathy, his predicament matters to everyone. If he never gets his day in court, it will mean any American could be jailed for life, without the chance to defend himself, on the president's say-so.

The "illegal enemy combatant" is a despicable foe, one who ignores international rules of war and fights for an outlaw outfit, like Al Qaeda or the Taliban, rather than for a recognized nation. Unlike the two other U.S. citizens, John Walker Lindh and Yaser Hamdi, who have been put in this category, Padilla was not captured on a foreign battlefield fighting with rogue forces. He was arrested on May 8, 2002, unarmed and carrying a genuine ID, getting off a plane at Chicago's O'Hare Airport.

Nor was he immediately labeled an enemy combatant. Federal agents had tracked him for weeks based on tips from informants, and at first they detained him as a material witness. They wanted his testimony for a grand jury convened in New York to investigate the 2001 terrorist attacks. Padilla was taken to a high-security federal prison in Manhattan and put in solitary confinement. U.S. district court judge Michael Mukasey appointed Donna Newman, a little-known criminal defender, to represent him. She recalls meeting with him for a total of 20 hours.

It is difficult to put a sympathetic shine on Padilla, though Newman tries. Born in 1970 to a working-class Puerto Rican family in Brooklyn, Padilla grew up in Chicago, where he joined a gang and committed crimes including aggravated battery and armed robbery. He served time in Florida for handgun possession and is said to have converted to Islam in prison.

"He was very confused," Newman remembers. "He was not angry or outraged. He was very calm, quiet. He made a great effort to understand what was happening and had great confidence in me." She says Padilla did not express his reportedly radical Muslim views to her.

Padilla's mother calls her frequently, says Newman, who claims he had gone to Chicago to visit his son. His family are "very concerned and very warm," she says, but they refuse to speak to reporters. Unlike the family of John Walker Lindh, who spoke with anguish about the misguided youth to Katie Couric and other national outlets, Padilla's kin are "very press-shy," says Newman. "But that doesn't mean they love him any less."

A month after Padilla was arrested, Newman asked the judge to release her client, who had yet to be charged with a crime and was still being held as a witness. The day before Mukasey was expected to make his decision, the president issued his remarkable order that Padilla was an enemy combatant and should be rushed into incommunicado military custody. He was taken to the Naval Consolidated Brig in Charleston, South Carolina, where he remains today.

Newman didn't learn of Padilla's military detention until the next day. She immediately filed a habeas corpus petition, the centuries-old citizen's tool to protest imprisonment without due process.

Over the next six months, she and her co-counsel, Andrew Patel, exchanged a battery of briefs with the Justice Department. The administration said it knew from confidential informants that Padilla had traveled extensively through Arab and Muslim nations in the late 1990s and early 2000s, meeting with senior Al Qaeda leaders and plotting to build and detonate a radiological bomb in the U.S. The military wanted to hold Padilla indefinitely, not just because he was dangerous but to interrogate him—perhaps, as one intelligence official said, for "years."

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