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Jose Padilla? Indict Him Already


August 14, 2005

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Jose Padilla is Donna Newman’s most infamous—and important—client. The first American citizen to be publicly cited and arrested as an “enemy combatant” inside the United States, Padilla has been denied his constitutional rights to meet with his counsel and to a speedy trial. According to his lawyers, Yale senior fellows and Stanford Law professors among them, he could become the government’s precedent for dissolving the separation of powers and weakening one of the most important articles of the Constitution.

It began three years ago. After flying into O’Hare International Airport, Padilla was arrested as a material witness in a grand jury investigation and brought to New York for questioning. The court appointed Newman as his attorney. A month later, the Justice Department transferred custody of Padilla to the Defense Department. Without Newman’s knowledge, Padilla was taken to a naval brig in South Carolina and dubbed an “enemy combatant.” Soon thereafter, Attorney General John Ashcroft announced on television that “we have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,’ in the United States.” Ashcroft identified the “known terrorist” as Abdullah al-Muhajir, the name Padilla adopted after converting to Islam.

Padilla’s case made another blip in the news in late July 2005 when the Justice Department appealed a lower court’s decision that the government must charge Padilla with a crime or release him. The government argued that United States territory must now be considered part of the battleground in the War on Terror, and thus that they were permitted to define Padilla as an enemy combatant and suspend his rights as a citizen.

In a line that could have come from satire, Newman’s co-counsel, Andrew Patel, told the three-judge panel, “I may be the first lawyer to stand here and say I’m asking for my client to be indicted by a federal grand jury.”

When I spoke with Newman last week, she reiterated the importance of the court’s decision—expected in the coming weeks—as it defines whether we keep one of our most important constitutional protections, or risk what may befall us if we let it go.

Joel Whitney for Guernica

Jose Padilla

Guernica: What’s the problem with how the government has treated Jose Padilla?

Donna Newman: The problem is it’s contrary to our Constitution and contrary to what we stand for.

Guernica: What’s at stake in this decision? How important a case is it?

Donna Newman: I think it’s very important. I think what’s at stake is the understanding that we continue to live in a society in which freedom is important. If we allow the administration to have its way, then we give up to the terrorists—they will have won, because our form of government will have changed.

Guernica: In what specific way? Mr. Bush has championed the word “freedom,” at least from his pulpit, and he claims to be fighting terrorists in the name of freedom. And Padilla is someone who allegedly planned to blow up thousands of people with a dirty bomb…

Donna Newman: But our system of government is based on the idea that if there are allegations that you’ve committed a crime, you get tried. It’s not about one person’s word, not even the president’s, on whether you’ve committed a crime. Rather you have a right, as a citizen, to have the prosecutor bring that claim before a grand jury. After a grand jury indictment, then a trial jury is formed to decide whether a crime has been committed and whether the defendant is guilty of that crime.

It’s not just words that are at stake. It’s really our form of government. Judge Coughenour, a chief United States District Court judge in Seattle, in sentencing Ressam [the “milennium bomber”], said the message of the sentence that he was giving is that our system works. Here is an alien who was caught by law enforcement in an attempt to commit this horrific act in L.A. He was then tried in the system and convicted.

And so the message was “that our system works.” And I’m reading this from Judge Coughenour’s statement: “We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.”

That’s it in a nutshell.

Guernica: Well, what do you say to someone who says this cliche that September 11 changed everything, and that in drafting the Constitution, the Framers weren’t aware of black market nukes, homemade bombs, commercial airliners being crashed into skyscrapers?

Donna Newman: I say several things: one, the Founding Fathers were definitely aware of terrorism, as they were in the midst of the American Revolution in which on their land were loyalists, who were terrorists in a sense, and who were there to destroy the colonists, from their perspective. Certainly there was a battle being fought on the home front such as the War of 1812. And there were other such wars. Indian wars. They were very much aware of people within the United States committing [terrorist] acts.

September 11 is certainly not the first terrorist act even in our lifetime. We had that unfortunate act in Oklahoma City where so many people were killed also by a terrorist. What we do is charge people with the commission of a crime. So that’s the first thing I would say – is that the Founding Fathers were completely aware of that.

And the second thing I would say is that if they are correct – if this is such a changed environment – then we need to go to Congress. And Congress needs to set new laws. But what we cannot do is let one person take the Constitution, throw it out the window and say this is the new way. It’s for Congress to make laws and for the president to follow them and enforce them.

Guernica: But don’t the rules change sometimes during war? Didn’t the U.S. intern the Japanese for fears of terrorist acts or espionage during World War II? I mean, this is an idea that seems to be “out there,” that the rules have changed a little, so I put it to you.

Donna Newman: I understand. Certainly when there’s a battlefront. This is not a battlefront. When you’re on a battlefront and somebody has a gun to you, there are totally different rules. Those are battlefront rules – totally different. We are dealing here in the United States with an American. Padilla is an American citizen who was seized within the United States. And what most people don’t understand is that he has not had an opportunity to confront the allegations. And two, he’s never been charged with a crime and, three, when he was seized, he was seized from a jail in New York City after he’d been there close to a month so that there was no immediate threat, no security threat, so that this issue – when people say what if somebody has their finger on the bomb – it’s just not the Padilla case.

Guernica: What about the idea that certain rights can be waived? Are some rights negotiable?

Donna Newman: There are rights that can be waived – there’s no question. You can waive your right to counsel. But it has to be an informed right and you first have to have the right to waive it. They say he doesn’t have the right. You know, you first have to have it.

It’s so dangerous here. Because what they are doing, what the government is really doing, what’s seeping into this administration’s policy – even if you want to say it’s well meaning – is a total sea change for our constitutional rights, because it’s making them discretionary. Discretionary meaning up to the government. In other words, the government says, “Gee, I think you’re about to commit a crime,” or “I think you committed a crime. I can designate you an enemy combatant, take away your rights, or I can put you to trial.” So it’s at their discretion. That’s what is most frightening to me. What they’re trying to set is a precedent that can have far-reaching consequences far beyond the Padilla case.

Guernica: You make it sound like it’s very likely to lead to abuses…

Donna Newman: Well, of course it can. I mean, that’s what the Founding Fathers drafted the Bill of Rights and the Constitution to avoid. It really goes back to England. It seems so silly – when you tell people, they say, “Oh, that’s not relevant today.” I understand that. Nonetheless, it’s so entrenched in our society that you do not rely on one person. Why? Because it is open to abuse. So while someone today is well-meaning, the reason we don’t want a totalitarian form of government is because tomorrow the next person will not be.

Guernica: Would you go so far as to say this is a step toward totalitarian government?

Donna Newman: I think that when the administration says, “If you disagree with us you are unpatriotic,” and when the administration says, “We determine who is an enemy combatant, and that individual and the courts must bow to our determination and cannot question it,” that is certainly a step toward a totalitarian government.

Guernica: How did you come to be involved in this case?

Donna Newman: I was appointed by the court in New York to represent Mr. Padilla when he was a grand jury material witness. Originally, that’s what he was. It was the regular civil process. He was initially arrested as a grand jury material witness out of a warrant out of New York. That’s how he came to be in New York and how I came to be appointed to represent him.

Guernica: After he was seized by the government, how long was he in the military brig before he was allowed to meet with his counsel?

Donna Newman: I met with him for close to a month without any problem, without any hoopla, when he was a grand jury material witness. When he was seized by the military, they stopped me from seeing him and all my co-counsel for close to two years.

Guernica: So when did you first meet with him in this new context?

Donna Newman: We met with him last April. Some people might suggest timing is everything. The government “allowed” us – at their discretion – right before initial [opening] arguments in this case.

Guernica: So you think the timing was a public relations stunt or something along those lines?

Donna Newman: People have said that.

All we are really asking for is that they indict him, that they charge him with a crime. That is not an outrageous position. In fact, it must be considered one of the most conservative positions for defense counsel ever to have taken.

Guernica: How did Mr. Padilla seem when you met with him?

Donna Newman: No question that Mr. Padilla is wearing under the strain of solitary confinement. He has been in solitary confinement for three years. Anybody who is in solitary confinement for that period of time – it has an impact on them. And certainly it’s had an impact on Mr. Padilla. I will say that he has great confidence in the system and he has great confidence in his attorneys. And I find it amazing – his fortitude. In light of the fact that – remember – all we are really asking for, his defense counsel, is that they indict him, that they charge him with a crime. That is not an outrageous position. In fact, it must be considered one of the most conservative positions for defense counsel ever to have taken.

Guernica: Is he guilty of a crime?

Donna Newman: We believe that he is not guilty of a crime. But that is really irrelevant. It is for a jury to determine that.

Guernica: Did he express any concerns about being in solitary confinement?

Donna Newman: Of course he has expressed his dismay that he could continue to be treated in this manner—that is, not charged with a crime, yet he has been held in solitary confinement, based on allegations that he can claim are not true. This is really important to understand – that somebody is in jail, he’s denied his complicity in the events for which he’s accused and yet he can’t confront them, and all he can do – according to the government—is sit there, forever.

Guernica: Have you asked him if he’s been tortured?

Donna Newman: There are certain questions we cannot ask in our agreement with the government. We are under restrictions and abide by those restrictions in questioning and in the manner in which we speak with him.

Point to one instance when the defense counsel ever leaked classified information and I hold that up against the leaks that have occurred from just this administration.

Guernica: Interesting. And what do you say to people who justify the Bush administration’s actions by stating that going to trial could reveal classified or secret information?

Donna Newman: Well, this has been a statement that they have made, that that’s why they can’t grant Mr. Padilla a trial. Number one, I would say cite Assistant Attorney General Comey in a famous June 1, 2004, statement – in which he says before the Senate giving testimony to Senator Hatch – and then afterwards he has a press conference. But the aim of it, really, is he says, “You see this is why we have to hold enemy combatants. You see, we got all this information from Mr. Padilla through this interrogation” – that’s what he said. And he makes all these allegations about how Mr. Padilla is gonna blow up apartment houses and so he didn’t really come to do dirty bombs. That was only good for the administration to allege for a year, knowing of course that it wasn’t true. Because, they said, “Oh no, no, that was really never the plan. Rather the plan is he was gonna blow up apartment houses.”

But then he said of course that Padilla had denied that. That’s an interesting statement in and of itself. But nonetheless, if interrogation leads to classified information, why is he making a public statement?

And if Padilla is so important as to keep his attorneys away from him, lest his attorneys somehow interfere with this process, how could he hold a press conference to make these statements? It doesn’t make sense. And how could Padilla, being kept in solitary confinement all that time, have any influence on anybody or any knowledge of anything that’s happening with al Qaeda?

Guernica: So you don’t take them at face value when they say it’s to protect classified information that they don’t want to try him?

Donna Newman: No, I don’t. In other words, what I’m saying is when they say that, yes, it has an effect. People say “Oh my god, we certainly don’t want classified information released.” But when you look at who they’re talking about, it makes no sense. So I don’t take it at face value.

The second thing is, we’ve had terrorist trials in the United States. We’ve had them in New York. And classified information was not released – because there’s a mechanism within the statutes, CIPA [Classified Information Protection Act], in which it says there is a special process you must go through to see that information accordingly. And some of the restrictions are: a.) only the court gets to see the information, and b.) the courts determine if the counsel can see the information, or only certain counsel, those with security clearance. In other words, the same clearance that the prosecutor has. Some of the restrictions are you can’t communicate it to your client. There are all kinds of restrictions that are imposed.

And then you think about the Moussaoui trial. And then you think about that recent trial with Ressam. And there was no problem with the leakage of classified information by defense counsel. In fact, I would like you to point to one instance when the defense counsel ever leaked classified information and I hold that up against the leaks that have occurred from just this administration.

Guernica: What has been the effect of this case on your own career? I know Mr. Padilla has been billed as Public Enemy Number 3 or 4. How has this affected your career?

Donna Newman: It certainly hasn’t brought me clients. (laughs) That I’ll say. And it has taken a lot of my time, in which I could pursue my private practice. On the other hand, it has been gratifying. I believe in what I am doing. I have received accolades, as has the entire team. I am certainly not alone. I have a team of attorneys that are helping me. And it is gratifying that other people recognize and agree with my position. So I am not sorry that it hasn’t helped my career in that sense. But people do recognize that I am a fighter. They have come to know that I will stand up for principles. And I think that that’s always good for business, any business.

Guernica: Mr. Frieman, your co-counsel, said that you have all gotten some – I think he said

“not-so-pleasant” letters and things?

Donna Newman: That’s true. I have. And I will say that any mail that I feel is threatening I simply pass it on to the U.S. attorney’s office.

Guernica: What kinds of notes?

Donna Newman: I get things that say I’m not being patriotic. But I think I’m being the most patriotic because I’m defending the Constitution. In general not horrible things, really. I think, in general, people do understand the adversary system. And I have not received something that’s too disturbing or if there has been something, I guess my secretary just passed it along to the U.S. attorney’s office and I didn’t see it. (laughs)

Guernica: What kind of decision are you expecting?

Donna Newman: (playfully) Favorable.

Guernica: And when do you expect it?

Donna Newman: Oh, I don’t know. Never rush any circuit court. Any appellate court.

Guernica: But what would be the longest you’d expect?

Donna Newman: I couldn’t even guess. I’m hoping by the fall.

Jose Padilla

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