The Accidental Advocate

By Lev Grossman

May 15, 2002, was Donna Newman's day to serve as a public defender at the federal courthouse for the southern district of New York. For lawyers in private practice like Newman, 54, it's the legal equivalent of being an on-call trauma surgeon at the local ER: if somebody needs a lawyer, she is it. "All I knew was, I had this assignment," she says, "and I had to come in that day." As it turned out, on May 15 somebody needed a lawyer very badly indeed. That was the day that Jose Padilla--former Chicago gang member, alleged would-be dirty bomber for al-Qaeda, constitutional test case for the new millennium--arrived in New York City. And by pure chance, it fell to Newman to defend him--which is how an obscure criminal-defense lawyer began her transformation into a crusader who is now suing the President of the United States.

When Newman met her new client for the first time in a sunny, wood-paneled courtroom on the 21st floor of a federal building in downtown Manhattan, she did not agonize over the moral calculus of defending a suspected terrorist. She did what Americans everywhere have done since Sept. 11: her job. She disputed the government's right to hold her client. After the hearing, Padilla was incarcerated in the nearby Metropolitan Correctional Center--less than a mile from ground zero--where he spent 23 hours a day in lockdown. When he did leave his cell, he wore leg and wrist shackles. Judge Michael Mukasey, a conservative with a tough-but-fair reputation, was scheduled to rule on the matter on June 11, but he never got the chance. On June 10, Newman was driving to work when she got a call from a friend at court: Padilla was no longer in New York. In the middle of the night, the Defense Department had removed him from prison and placed him in a private wing of a Navy brig in Charleston, S.C.--with no charge, no access to lawyer or visitors, no warrant and no warning. By making Padilla the first American citizen in the war against terrorism to be held without charges inside the U.S., the government had ignited a debate about whether it has the power to strip basic constitutional protections from its citizens. As Newman saw it, President George W. Bush had stolen her client, and it was her job to get him back.

Barely more than 5 ft. tall, with dark hair and large, weary, Allison Janney eyes, Newman was born in the working-class neighborhood of East Flatbush, Brooklyn, N.Y., the same place where Rudy Giuliani grew up. Her father owned a stationery store. Newman is the first lawyer in her family, but she didn't lack for legal role models. "In my day," she remembers, "we all wanted to be Perry Mason. He never lost a case." Though she now lives in a small town in New Jersey, Newman is proud of her Brooklyn roots and still talks with a streetwise accent. She didn't apply to law school until she was 35; before that, she raised two children and worked as a speech pathologist. Now in her 50s, with her kids out of the house, she has allowed the law to take over her life. "My day starts at 6, and I'm home by 10," she says. "If I'm home earlier, I'm working." She is the kind of wisecracking, tough-talking woman who in an earlier era might have been called a "pistol." Her sense of humor occasionally gets ahead of her sense of lawyerly decorum; she is always backing up, retracting things, taking herself off the record. "I'm a serious person!" she insists. "I make jokes all the time, but I take my work very seriously. Juries love me. I no longer wear short skirts, and they still love me."

As it happens, Padilla is also a Brooklyn native, though he left the borough when he was 4 and grew up in Chicago. A convicted felon, former gang member and all-around hothead, Padilla found Islam in his 20s. It channeled his rage, leading him to a series of increasingly radical mosques, then to schools in Egypt, Pakistan and Afghanistan and finally to an alleged meeting with Abu Zubaydah, al-Qaeda's chief of operations. At the meeting Padilla allegedly proposed a plan to build a so-called dirty bomb containing radioactive materials, but there is no evidence that it ever got past the fantasy stage. As Newman puts it, "He didn't even get to the t in terrorist." After Abu Zubaydah was captured in Pakistan in March, he helped lead authorities to Padilla. In May, Padilla returned to the U.S. via O'Hare International Airport in Chicago, and customs officers nabbed him at the baggage claim.

On June 10, when Newman heard that Padilla had been taken to South Carolina, she thought it was a joke. "You have to understand, how could I anticipate this?" she asks. "This has never happened to anybody before." She spent that day in court, working her other cases, then stayed up till 3 a.m. drafting an emergency motion to free Padilla.

It's worth looking at what happened the night the government moved Padilla, because it's part of a larger change in American society since Sept. 11. Six weeks after the World Trade Center fell, Congress passed the U.S.A. Patriot Act, which was designed "[t]o deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes." The legislation gave Bush and Attorney General John Ashcroft a license to expand the scope of their authority, and they have used their new powers, plus a few old ones, to detain more than 1,200 people in the U.S., Americans and foreign nationals, in the name of the war against terrorism. Most were picked up on immigration violations, their hearings closed to the press and the public. About two dozen (including Padilla) were detained as material witnesses in grand jury investigations, a rare practice before Sept. 11. The courts are still trying to figure out whether it is legal. (A federal appeals court in Cincinnati ruled last week that the secret deportation hearings were an unconstitutional attempt to put the government's actions "beyond public scrutiny.")

President Bush raised the stakes further by publicly labeling Padilla an "enemy combatant"--a legally murky phrase that has its origins in a World War II-era case in which a group of German spies infiltrated the country in disguise, thereby forfeiting the usual protections afforded to prisoners of war. Since the attacks, one other American citizen has been classified that way: Yaser Esam Hamdi, a Taliban soldier who was born in Louisiana and captured in Afghanistan. He too has been imprisoned without an attorney or a trial.

Fortunately for Padilla, there's a law for situations like this. It's called habeas corpus, and it's designed to force the government to bring a prisoner before a judge; the prosecution must make the case for holding the prisoner or let him go. On June 12, Newman submitted a petition for a writ of habeas corpus to Judge Mukasey, and that day he appointed a co-counsel to help Newman handle the workload: Andrew Patel, 50, a genial veteran with a hearty laugh who is no stranger to controversial clients. In 1997 he defended El Sayyid Nosair, a convicted assassin suspected of masterminding the 1993 World Trade Center bombing from prison. Together Newman and Patel spent a week beefing up her original petition. The new version cited a litany of constitutional violations, from the right to a speedy trial to the right to counsel to the Posse Comitatus Act, which prohibits soldiers from engaging in police activity on U.S. soil. The revision also added a few new targets: Commander M.A. Marr--the officer in charge of the brig in South Carolina--Secretary of Defense Donald Rumsfeld and President Bush.

By this point, Newman's life was getting a little surreal. She was still working on pronouncing all the Arab names she was learning. When she went to the gym after her first day of TV appearances, her spinning class greeted her with a round of applause. But she doesn't relish notoriety--"I didn't wake up one morning and say, 'Gee, I'm going to sue the President!'"--and she is intensely protective of her private life. As a lawyer, she has a natural antipathy to being interviewed--she likes to be the one asking the questions, thank you. She will not allow her husband or children to be named in the media. And she is terrified that her colleagues--or worse yet, Mukasey--will think she is grandstanding.

On June 26, the government counterpunched, filing a motion to dismiss Newman's petition. ("Notice there are 12 names on every one of their briefs, and just the two of us," Newman observes wryly. "The usual odds.") The prosecution attorneys, led by U.S. Attorney James B. Comey, argued that Newman can't name Bush and Rumsfeld as respondents, since they aren't technically Padilla's jailers, and that because Padilla is now being held in South Carolina, he is outside the New York court's jurisdiction. They even suggested that the President is legally untouchable: "A court of the United States," they wrote, "'has no jurisdiction...to enjoin the President in the performance of his official duties.'" While they were at it, they tried to take Newman out of the game, arguing that she lacks the authority to act on Padilla's behalf. In short, Newman was the wrong person, suing the wrong people, in the wrong place. "You can see where my sense of humor comes from," she says. "It's a little dry from doing this kind of work."

Newman and Patel were developing an enormously effective legal chemistry. They share a gluttonous appetite for work, and they make a natural good cop-bad cop team. "Our personalities fit together. He's the nice one," she admits. "I'm very aggressive. He calms me down." They worked out a division of labor, splitting up the petition into chunks according to who had expertise in what, swapping drafts and editing each other's work. "We've pulled some fairly close to all-nighters," says Patel. "Things where we say, 'We just have to do X, and we don't leave until X is done.'"

X was a 32-page reply to the government's motion to dismiss, defending Newman's status as Padilla's representative and her right to name President Bush--since he is the one who ordered Padilla put away, Newman and Patel argued, Bush is the only one who can set Padilla free. As for whether the court has power over the President, Newman and Patel argued that "to hold otherwise would be to recognize an imperial Presidency that our Constitution was designed to prevent." Newman added a charge of "forum shopping"--that the government had deliberately moved Padilla to a jurisdiction where he will face a tough judge. She pointed out that the government has now transferred all four of its major terrorism suspects--Padilla, Hamdi, Zacarias Moussaoui and John Walker Lindh--to prisons in the deeply conservative Fourth Circuit.

So who is winning? At this point Newman is just fighting for the right to keep on fighting, and by that standard she is doing pretty well. On July 31, Judge Mukasey summoned both sides to his chambers and asked them to file briefs expanding and clarifying their points of view. Newman's brief is due on Sept. 13--a Friday. It's a victory of sorts: Mukasey could have dismissed the matter on the spot or had it moved to South Carolina, but he didn't. The hearing also had a surprise special guest: Principal Deputy Solicitor General Paul Clement, a conservative and relatively young lawyer who took over arguments for the government's side. His presence was a clue as to where the Department of Justice thinks this is all heading, given that the primary function of the Solicitor General's office is to argue the government's cases before the Supreme Court.

Meanwhile, rumblings of concern are coming from some of Washington's more influential precincts, where not everybody is happy with Padilla's incarceration. Senator Tom Daschle has publicly questioned Ashcroft's motives for waiting an entire month before informing the public of Padilla's arrest. Senator John McCain has called on the Attorney General to explain his rationale for detaining Padilla--after all, if the feds have enough evidence to charge Padilla formally, why don't they do it? Intelligence officials have acknowledged that Abu Zubaydah's reliability is uncertain at best, and an Associated Press report in August had law-enforcement officials dismissing Padilla as a "small fish" whose plans never got beyond the drawing board. But the Justice Department shows no sign of loosening its grip on Padilla, and in the end, that old saying about possession and the law still applies. The government has Padilla exactly where it wants him, and it can afford to stretch out the legal process for as long as it wants.

For now, Newman is arguing her other cases and commuting from New Jersey to New York. "I spend my life in the Holland Tunnel," she says, sighing. But Padilla v. U.S.A. has swallowed her summer. "I haven't been to the shore once," she says. "I went to Fire Island. I was one block from the beach, and I stayed inside the entire time." She sends letters to Padilla but has no idea if he is getting them. She keeps in touch with his family. Civil-liberties groups besiege her with offers of publicity and free legal advice, but she ignores them. "My position is, I have a client, and I'm going to do what's best for him. He's not a poster boy for anybody." As for the question mark at the center of all this, she won't comment on her impressions of Padilla or their conversations. "Who cares?" she snaps, in a rare display of annoyance. "I don't see how that's relevant."

She is right, of course. If this were Perry Mason, Newman's client would be a sympathetic, telegenic character, but that's not how real life works. Even so, Newman saves her scorn for those who treat the courts as an inconvenient obstacle to getting what they want, and the Constitution as a tiresome formality to be discarded when it ceases to be convenient. On the morning of Sept. 11, Newman was boarding a PATH train in New Jersey when the first plane hit. The train would have taken her directly under the World Trade Center; if she had been arguing an early case that day, she could have been killed. "It's still very traumatic for me," she says. "Our area lost a lot of kids. My children had friends at Cantor Fitzgerald. But we can't let them take away our form of government." In other words, Donna Newman wants us to know that when the shooting stops, when the memorials are built, when we can finally stop looking funny at low-flying aircraft, our rights will still be here--and that lawyers like her will take the case.