In May of 2002, the Mayor of New York City, Michael Bloomberg, presided over
a somber ceremony to mark the completion of the World Trade Center site clean-up from the deadly attacks there just eight months earlier. Just a few blocks away, Chief Judge Michael Mukasey of the United States District Court for the Southern District of New York assigned criminal defense attorney Donna Newman to represent a man arrested on a material witness warrant in Chicago and transported to New York. Subsequently, the Attorney General of the United States would announce the capture of this man supposedly involved in a "dirty bomb plot" with great fanfare (during a visit to Moscow, Russia no less, an irony naturally lost on the Bush Administration), and the President would declare Jose Padilla the first "unlawful combatant". For the first (and only) time in American history, a United States citizen arrested in the United States was, and remains, held without charge as a purported threat to national security, solely on the say-so of the President. For some time, Mr. Padilla was denied even contact with counsel.
Almost immediately after the "enemy combatant" declaration, Ms. Newman
prepared a petition for habeas corpus demanding that Padilla be charged or released. She has been working tirelessly on this matter ever since. That case went all the way to the United States Supreme Court (in what I have opined is the most important case of our lifetimes), and after the High Court dismissed the habeas petition on a procedural technicality ("improper venue"), it has been re-commenced in South Carolina and an appeal from a District Court Judge's granting of the petition will be heard by the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia later this year. Until then, the Government continues to hold Mr. Padilla without charge or trial, long after itself acknowledging that he has no more useful information for interrogation purposes and that it had virtually no evidence of the supposed "dirty bomb" or other nefarious plot involving him.
On April 18, 2005, Ms. Newman was kind enough to speak to me by telephone.
Below is the "Q&A" (based on my interview notes, with some corrections provided by Ms. Newman):
Talking Dog: Where were you on the morning of September 11, 2001?
Donna Newman: I was supposed to go to court in Manhattan. At that time I lived in New Jersey and before I left my house, I found out what happened and saw it on television.
Talking Dog: Where was your co-counsel Mr. [Andrew] Patel that morning [Mr. Patel's office is now across the street from my own, around 100 yards from the World Trade Center site]:
Donna Newman: Mr. Patel was at his office that morning, and came outside. I understand he suffered burns to his eyes as a result of what happened.
Talking Dog: Where was Mr. Padilla that morning?
Donna Newman: I don't know.
Talking Dog: You were assigned to represent Mr. Padilla in connection with a material witness warrant for his testimony before a grand jury. Do you have any idea what evidence did the government expect him to give? And did that grand jury ever indict anyone?
Donna Newman: As you know, the grand jury process is secret, so I can't really discuss Mr. Padilla's testimony. I don't know whether the grand jury ever indicted anyone. And the government has never let me in on what it was doing-- what it was investigating. The Government feels that defense counsel deserve no information of any kind, and we are there simply by the graces of the government itself. The Government has not seen fit to share any evidence pertaining to Mr. Padilla with me.
Talking Dog: This would include the [Defense Department employee] Michael Mobbs Affidavit [used in earlier proceedings to justify Padilla's detention] and documents referred to in it?
Donna Newman: Yes, it would include the Mobbs (pronounced "MOBES") affidavit; a judge down South knew it was supposed to be pronounced "MOBES", so he made it a point of pronouncing it
"MOBS". There were two Mobbs' Affidavits-- one released to the public, which we saw, and a second one for in camera review by the court under seal, which we were not permitted to see.
Talking Dog: Did the scope of your representation include the habeas corpus petition, and did the government ever challenge paying you attorneys fees for that?
Donna Newman: The duties of assigned defense counsel include bringing habeas corpus petitions. Interestingly, the government never questioned my right (or Padilla's) to bring a habeas corpus petition, nor did it challenge my applications for attorney's fees for the work. However, the Government (the Department of Defense) refused to let me meet with or communicate with my client, nor did it give me any other information whatsoever to enable me to prepare a necessarily effective or meaningful defense.
Talking Dog: So as American taxpayers, we should let our fellow citizens know that the government has no problem paying defense counsel, it just doesn't want them to be able to do anything meaningful--
like putting up an actual defense.
Donna Newman: Well, that would seem to be the case.
Talking Dog: Am I correct that as we sit here, Mr. Padilla and Yaser Hamdi (who has since been released and returned to Saudi Arabia) are the only U.S. citizens designated "enemy combatants"?
Donna Newman: Yes, as far as I know, the only two ever. Though I understand from news accounts that a third-- a U.S. citizen-- has been held in Iraq as an "enemy combatant: as well. I believe that came out last week.
Talking Dog: Can you comment on the Supreme Court's decision to dismiss your habeas corpus petition on venue grounds in Padilla v. Rumsfeld?
Donna Newman: This is a live issue for the Supreme Court. Venue becomes a very important issue in a lot of contexts, notably immigration, where detainees are not held anywhere, but in a few large centers in a few cases.
For example, the Fifth CIrcuit (based in New Orleans) has a lot of these cases and a developed body of law on this because there is a large detention center in Louisiana. So detainees would try to bring their habeas corpus petitions where they thought they had the best chance-- either where they lived, or
where they were detained, or wherever else they thought they could get venue. Another example is a prisoner from Washington, D.C. They may be charged, tried and convicted in the District of Columbia, but the
detention facilities are in Virginia. After the Supreme Court's decision, what now matters is where the GOVERNMENT choses to detain you. The government can forum shop for a venue more friendly to it simply by selecting where to detain someone. The trend in the federal courts (particularly in
the Second CIrcuit, that includes New York) was the other way. But this is what the Supreme Court ened up holding. That was not necessarily the result intended by the Supreme Court, which was just deciding this case, but that is certainly going to be the result of it. The Supreme Court dismissed the petition for lack of jurisdiction, without prejudice to bring another petition. Of the 13 judges who heard the case, eight agreed that there was jurisdiction (Chief Judge Mukasey of the District Court, three judges on the Second Circuit panel and four dissenting Supreme Court justices), but the five who did not happened to be the majority of the Supreme Court.
Talking Dog: Had you considered bringing the habeas corpus petition for Mr. Padilla in South Carolina?
Donna Newman: Well, you have to remember something that the Supreme Court and others conveniently overlooked: I didn't know where Padilla was at the time I filed the habeas corpus petition in Manhattan. The Government moved him without bothering to tell me or anyone else where he was. I wrote that "on information and belief" I thought he was in South Carolina because I got that out of press accounts. I don't usually swear to things based on press accounts, so I said on information and belief. I only learned where he actually was much later in time, when the government saw fit to tell me, though for a while I had no ability to meet with Mr. Padilla.
Talking Dog: The Government has since permitted you to visit Mr. Padilla in order to improve its position before the case went to the
Supreme Court, did it not?
Donna Newman: Well, I'm not going to speculate as to why the Government did or does anything...
Talking Dog: The timing of the Government's decision to allow you to meet with Mr. Padilla certainly coincided with when the case was heard by the Supreme Court, did it not?
Donna Newman: Oh yes-- that's certainly true.
Talking Dog: Now, when you meet with Padilla, I take it that the government still records and monitors your conversations?
Donna Newman: That has changed over time. Originally, of course, Padilla was too dangerous to even meet with defense counsel, and defense counsel were presumed untrustworthy-- like we would be part of some terrorist plot. As if it were necessary, we were vouched for by the Chief Judge of the Southern District [Michael Mukasey], who told the government we could be trusted to meet with Mr. Padilla. But the government kept insisting that Padilla was too dangerous, and that he was being interrogated and that meeting with counsel would interfere with the interrogation process. Since that time, of course, they have announced that they are no longer interrogating him, but they are still holding him anyway. At the meeting with him before the Supreme Court case, conversations were monitored by a naval office, and video-tape recorded. Since that time, procedures have somewhat loosened up, and while not exactly private, meetings are now not dissimilar to other meetings with other clients in other penal institutions-- they're not monitored or recorded to my knowledge.
Talking Dog: Do you feel pressure in your legal practice as a result of the Lynne Stewart prosecution?
Donna Newman: The Lynne Stewart case hangs over all of our heads. All defense attorneys. I mean, what constitutes "going over the line?" What constitutes "a crime"? It's determined by the Government itself. Is it a rule? Is it a crime? I mean, you sign a contract with the government saying you'll do X, you do X, I understand that, and when I sign such a thing, I try to operate within the confines of my agreement, and if I want to challenge it, I do so through the appropriate channels. I understand that. But... in the Lynne Stewart case, what is going on? It seems to have been an adminsitrative rule that the government itself declared was a crime. very scary stuff. But let's compare it to a statement made by [Deputy Attorney General James] Comey [in June, 2004; CNN account here.] Comey's statement divulges, supposedly confidential information revealed by Padilla during interrogations from him. Now this should raise some eyebrows for a number of reasons. For one, Mr. Comey is trying his case in the press, conveniently failing to point out that Mr. Padilla himself disputed what Mr. Comey was saying- and this was dispsute was disclosed in a report to Congress [in response to an inquiry from Senate Judiciary Chairman Orrin Hatch of Utah which declassified some information pertaining to Mr. Padilla]
Talking Dog: Wait a minute-- that was in a footnote...
Donna Newman: Oh, that's right! Footnotes don't count! Anyway, Mr. Comey is trying his case in the press, and apparently disclosing confidential supposedly dangerous information to do it. He is, by the way, the subject of an ethics complaint-- not brought by me--but by the Center on Constitutional Rights. I'm not part of their complaint [that complaint alleges a violation of lawyers' disciplinary rules by Mr. Comey for disclosing a supposed admission during interrogation that he was a terrorist]. So you ask yourself-- what really is the difference between what Mr. Comey did and what Lynne Stewart did? One is a defense counsel and one is the prosecutor. But at some point, defense attorneys have to be able to act as defense attorneys.
Talking Dog: At this point, you have said that the government no longer needs to interrogate Mr. Padilla... are they still contending he poses too much of a treat to be released?
Donna Newman: The Government has now said that there was never a plan to detonate a so- called dirty bomb. Then Mr. Comey announced a plan to bomb apartment houses. But the government seems to have nothing to support that either...
Talking Dog: So then, if Padilla has no useful information and isn't really a threat, why pick him up?
Donna Newman: The Government wanted information. They wanted the ability to grab people off the street and interrogate them with no due process. The idea is that we somehow get better intelligence this way. The thinking is that its coercive intelligence-- like we're going to torture someone and he's going to tell us where a ticking bomb is. But... as we have learned in Guantanimo Bay and in Iraq, tortured, coerced intelligence has not proven effective. It doesn't lead to good intelligence... In any event, they are no longer interrogating Mr. Padilla, and he apparently is no longer a threat.
Talking Dog: If Padilla no longer has useful intelligence, why not charge him or release him?
Donna Newman: When is the last time you saw a criminal defense attorney BEGGING the government to charge their client with a crime?
Talking Dog: Do you think this is about politics-- not wanting to make the Bush Administration look bad by simply releasing him-- or charging him and not getting a conviction?
Donna Newman: The government has no exit strategy for this case (kind of lack in Iraq where they also have no exit strategy!) The government needs to find an exit strategy, and it doesn't have one here, so they continue to hold him indefinitely...
Talking Dog: As you know, in the case of Zaccarias Moussaoui, the Government chose to charge him and bring that case through the judicial system. Has anyone in the Government (or anywhere else!) reconciled why Moussaoui gets an indictment and a charge, and Padilla just gets legal limbo?
Donna Newman: These are ad hoc policies thought up seemingly with no thought at all. No, no one has even attempted to reconcile what the Government is doing in these cases....
Talking Dog: You obtained a favorable ruling out of South Carolina on your new habeas corpus petition. Does it look like the Fourth Circuit Court of Appeals will hear that case soon?
Donna Newman: Yes, argument has not yet been scheduled, but that court should certainly hear the case this year.
Talking Dog: Do you think that, by and large, the American people actually care about this case, and care about what happens in it?
Donna Newman: I'm afraid the answer is no. Most people think that at least they're taking a terrorist off the street- they're making ME safer. But they're not, of course. This makes us less secure-- not more secure. What's that famous statement...
Talking Dog: Ben Franklin's quip that "they who would trade their precious liberty for a little temporary security
Donna Newman: Exactly. What we have here is a decision not made by the people-- but by their government. In this country, the Congress makes the laws, and the President executes them. The President MUST follow the laws of Congress. Congress passed a law [18 U.S.C. § 4001(a) (2000) (the "Non-Detention Act")] expressly prohibiting the President from detaining citizens on U.S. soil without CONGRESSIONAL authorization to do so, and the President had, and has, no such authorization. The President didn't ask Congress to pass a law to give him such authorization. And even if he did, such a law would probably be unconstitutional. Not because anyone condones terrorism, or anything like that. But there are reasons we do things. In Germany-- and I hate to use that as an example, but it's true-- in Germany people turned their backs on the first few infringements and it just kept going. For another thing, we need to protect our soldiers over in Iraq and elsewhere fighting for us. That's why we're strong. It's our laws and that we follow them that make us strong. Without them, how are we different from other countries? I believe in our Constitution. YOu just can't take someone on the street, lock them up, and say that the rules don't apply to them. You just can't.
Talking Dog: Do you believe that Mr. Padilla's background-- a Latino, an ex Latin King gang member, someone convicted of taking part in a homicide as a juvenile-- in short, do you think that background, as opposed to say an upper middle class Caucasian-- effects why the American people don't seem to have a great deal of interest in Mr. Padilla or this case?
Donna Newman: That's certainly a possibility. There's no question that his background may be a factor in why people don't seem too concerned. But look: you have a government that tells us it "cares about life", and yet here it arrests a man and just says they are going to hold him in jail for the rest of his life-- no due process, no trial-- it all seems very hypocritical when you look at it that way.
Talking Dog: Are you aware of the internet rumors circulating about this case, for example, a rumor associated with a picture of Mr. Padilla
juxtaposed with Jon Doe No. 2 from the Oklahoma City bombing case?
Donna Newman: You know, I don't have time to follow all of the rumors and other nonsense out there.
Talking Dog: Ms. Newman, on that note, I thank you for being so generous with your time for me.
Donna Newman: Well, I just want your readers to know that I believe in our Constitution, and in our freedoms, and that's why I'm doing this. This could happen to any of us. And it cannot. It just cannot be allowed to happen again.
Excellent. But why do I feel less secure than I did five minutes ago?
Posted by Glen at April 21, 2005 8:33 AM
Thanks for posting such an informative interview. Living in Chicago, I've paid more attention to Mr. Padilla's case than I would have otherwise, civil rights issues aside. The best part of the article, in my opinion, is the question of what happens to him before the Supreme Court, and when is his releases? I get the feeling they release him right about the time GW leaves office, unfortunately. Again, great interview.
Posted by Jason Kunesh at April 22, 2005 12:00 AM
First, nice work.
Second, I'm surprised this isn't attracting more attention. I found it via Jim Henley. I hope more people turn up here.
Third, as a lawyer, I'm very impressed by the professionalism shown by Ms. Newman. She doesn't rant, she doesn't speculate, she doesn't color outside the lines. She just states her position and the law. Some might find this insufficiently dramatic; me, I think it's very appropriate, and very professional. Kudos to her.
Just wondering: did you have to edit the interview much? Aside from the usual "ums" and "ahs", anything left out? Or anything you didn't get around to?
Posted by Doug Muir at April 22, 2005 7:42 AM
I'm a little disappointed that she is so willing to dismiss the John Doe #2 connection. Her client is being held as a terrorist. People have commented on the remarkable similarity of likeness between Padilla and John Doe #2. Considering the treatment that her client has received, I'd say it is a little premature to rule ANYTHING out. Any defense attorney who looks at this situation and simply concludes that "these are ad hoc policies thought up seemingly with no thought at all" is not doing their job in my book. Calling any theory "nonsense" at this point is poor advocacy.
It has been clear from the get-go that Padilla was never going to see the light of day. I think there is a bigger reason than that the administration doesn't want to embarass itself. The government could have backpedalled over time if they anticipated releasing him. Instead, they let Comey go forward with very public accusations against Padilla. They were clearly rolling the dice that by painting a picture of Padilla as a terrorist the public and, more importantly, the media wouldn't ask too many questions about the due process rights of a "bad guy".
Posted by space at April 23, 2005 4:43 PM
Very interesting, good interview; bravo!
To Donna Newman as well.
Posted by Thomas Nephew at May 5, 2005 2:15 PM
The courts have already decided that a military trial is acceptable in these circumstances. You left wingers that work to help terrorists make me sick.I do not think this will post as I think you are simply propagandanistic mouth pieces.
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