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Behind the News

For lawyer, case is about due process in peril


Donna R. Newman, a private practice lawyer, expected a routine morning in court that Monday as she drove up the New Jersey Turnpike to Manhattan. Then her cell phone rang.

The Pentagon has seized one of your clients, said the caller, a friend in the district attorney’s office. Jose Padilla was now sitting in solitary confinement in a South Carolina naval brig. President Bush had branded the New York-born “dirty bomb” suspect an “enemy combatant.”

“I thought he was joking,” Newman said. “I had never even heard of an enemy combatant.”

That phone call last June touched off an ongoing struggle between Newman and the U.S. government. The dispute pits Padilla’s constitutional right to due process against the government’s authority to strip it away in the name of national security. Its outcome could have wide-ranging consequences for how authorities treat suspected terrorists.

“As a citizen, it frightens me,” Newman said of the precedent set by Padilla’s detention. “I’m frightened that the rest of America doesn’t see it. If it can happen based on somebody’s suspicions, it means you can pluck people off the street and nobody will know. That’s a totalitarian regime. That’s what they had in Argentina.”

Authorities arrested an unarmed Padilla in Chicago last May as he stepped off a flight from Pakistan. The Bush administration says three actions merited Padilla’s detention: He traveled to Egypt and Pakistan; he met with Al-Qaeda operatives during those travels; and he returned to the United States to scout targets for a radioactive dirty bomb.

“We have disrupted an unfolding terrorist plot to attack the United States,” Attorney General John Ashcroft said in announcing Padilla’s detention.

But the government has presented little evidence to back that charge, either to Newman or the public. The administration says Padilla’s status as an enemy combatant means that, as long as the war on terrorism continues, it doesn’t have to.

Newman fears the government is hiding behind that authority “because they can’t prove the case against him.” Already concerned when Congress passed the USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act in 2001, Newman now says the administration is steering a legal course more dangerous than she ever anticipated.

“I want to leave the Constitution the way I found it,” she said. “For the first time in my life I’m concerned that’s not going to be.”

Newman discussed the case over coffee in the living room of her suburban New Jersey home. The 55-year-old lawyer recalled her first weeks on the Padilla case with weary amusement. She remembered showing up in court alone to find the government’s table packed with Pentagon and Justice Department lawyers. She also recalled the nights and weekends spent teaching herself military law -- as well as the missed vacations.

Newman is an unlikely adversary for the Bush administration. She typically defends suspects in drug cases and works out of small offices in New York and New Jersey. She loves shopping and describes herself as “not political” and “a patriot.”

Her involvement in the Padilla case began May 8 of last year. That day a New York grand jury investigating the Sept. 11 attacks handed down a material witness warrant for Padilla’s arrest. As the on-call public defender, Newman was tapped to defend him. She met the suspect for the first time in court a week later.

“I recognized immediately that this was a high-security case,” she said, “because the marshal wouldn’t let me keep a pen in my hand.”

That detail is emblematic of a case that Newman has struggled to defend ever since. When the military seized her client, Newman retaliated with a hastily drafted habeas corpus suit. The government, in turn, told her that in order to file the suit she needed Padilla’s signature -- knowing that was impossible because the military was keeping him in solitary confinement in South Carolina

Endless rounds of briefing and counter-briefing ensued. Meanwhile, Newman requested a co-counsel and the court assigned Andrew G. Patel. The National Association of Criminal Defense Lawyers and the American Bar Association rallied to their side. So did public defenders, sole practitioners and academics across the country.

Finally, on Dec. 4, a mixed ruling came down. The judge decided the government could continue to detain Padilla without charging him but must justify the detention by showing “some evidence” of his alleged links to Al-Qaeda. He also ruled that Newman could help Padilla contest that evidence.

So when will she finally see Padilla?

Soon, she hopes. She just filed one last brief.

“I do not speculate anymore,” she said.

If the Padilla case has made Newman a flag-bearer for civil libertarians, she never planned for the role. Newman grew up in Brooklyn and spent the beginning of her career teaching speech in public schools. It wasn’t until her mid-30s that Newman enrolled at New York University’s law school.

“My dad and I used to watch Perry Mason,” Newman said. “He was my idol. I always wanted to be an attorney.”

Newman credits the 20 years she spent as a criminal justice lawyer with awakening her to inequities within the legal system. “I learned most of all that people who are labeled criminals have much in common with people who are not labeled criminals,” she said. She described many of her clients as ordinary fathers and mothers who turned to crime out of financial necessity.

As for Padilla, a former gangster with murder and weapons convictions on his record, Newman refuses to say whether he, too, arouses her sympathy.

The case is not about him, she said. It’s about the larger issue of civil liberties. And in the end, she said, it’s about common sense.

“John Walker Lindh had a trial,” she said. “[Zacarias] Moussaoui is having a trial. The shoe-bomber had a trial. We want a trial!

“I never thought I’d say, ‘Charge my client.’ ”

Marc Parry is a free-lance writer and a graduate student at Columbia University School of Journalism, New York City.

National Catholic Reporter, March 7, 2003