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As a solo criminal defense attorney since 1991, Donna R. Newman was accustomed to long hours. Still, she had enough time for workouts at the gym, and her weekends were free for fun activities like family outings to Fire Island and the Jersey shore. Seldom would pestering reporters call with questions about her mostly small-fry clientele. Then on the evening of June 9 last year, her world was turned upside down and inside out. On that date, President George W. Bush, acting under the Authorization for Use of Military Force Joint Resolution [Public Law 107-40], signed a White House memo to the Defense Department declaring Newman’s latest obscure charge, Brooklyn-born and Chicago-bred Jos� Padilla, an “enemy combatant” of America. That night, Padilla was taken from the Manhattan Correctional Center and flown to the Consolidated Naval Brig in Charleston, S.C., where he is barred from speaking to lawyers or anybody else, his family included, in order to “prevent [Mr. Padilla] from aiding Al Qaeda in its efforts to attack the United States,” according to Bush. Ever since, Newman has been pressing a writ of habeas corpus here in New York, where she was assigned as federal public defender in May 2002, when Padilla was detained under a material witness warrant. He is suspected of a plot to detonate a so-called “dirty bomb” that would spread deadly radioactive matter. Were it not for Bush’s order on June 9, 2002, Padilla could have been released on June 11 under laws protecting U.S. citizens from indefinite incarceration. Though she is not entirely alone in a cause c�l�bre likely destined for the U.S. Supreme Court — the Southern District assigned solo practitioner Andrew G. Patel to assist in the Padilla case — Newman bears an exceptional burden as lead counsel. Her tiny office in a nondescript building on Manhattan’s West Side has suffered due to the enormous amount of time the Padilla matter consumes. She writes frequently to her client, but military officials in South Carolina will not confirm that their prisoner has received her letters. And though by nature a very private person, Newman has become the public face and voice of a growing coalition of lawyers — conservatives and liberals alike — concerned by what they see as the Bush administration’s unprecedented attack on American civil liberties. “There has never been a case like this. It’s not military law, it’s not civil law,” said Newman in a recent interview, in which she spoke by cell phone from her car as it was stalled in a late-night Pulaski Skyway traffic jam in New Jersey. “It’s not justice. It’s the absence of justice. It’s a void of rights. It’s a black hole. “Yes — I am overwhelmed by this case. I really find it difficult to spare a minute out of the day,” she said. “It’s a challenge, it’s an historical responsibility. What can you do? Well, you’ve got to step up to the plate.” FINANCIAL CHALLENGE But what about the financial challenge to a solo practitioner, perhaps caught in as black a hole as her client? “I lose business,” Newman acknowledged in a subsequent telephone interview from her New Jersey home, which provides daytime quiet for studying unfamiliar areas of the law. “I’m not in the office for client calls, I’m not on hand for filings. This [case] is something you don’t put aside. … If I’m not drafting a brief, I’m reading a law review article. If I’m not reading an article, I’m reading military law, or Department of Defense regulations. It’s a continual learning process. “How much money am I losing? I can’t even think about that. I have too many other things to think about.” Newman’s learning process began when she partnered with Patel, who has terrorism trial experience as co-counsel in the 1995 defense of El Sayyid Nosair, a U.S. citizen convicted by a Southern District jury of conspiring to blow up the United Nations, assassinate the president of Egypt and bomb vital highway tunnels in New York. (Four years earlier, Nosair was convicted for murdering Rabbi Meir Kahane of the Jewish Defense League.) First, Newman and Patel spent a week expanding the original writ, to include a laundry list of constitutional violations. Since then, the two have worked numerous times through the night into the wee hours to shape a revised petition. Padilla v. U.S. now claims Defense Secretary Donald Rumsfeld and President Bush as violators. James B. Comey, U.S. Attorney for the Southern District, disputes the latter claim. He declared in a brief, “A court of the United States has no jurisdiction … to enjoin the president in the performance of his official duties.” In March, Southern District Chief Judge Michael Mukasey reaffirmed a December ruling that Padilla had the constitutional right to meet with his defense team. The government appealed to the 2nd U.S. Circuit Court of Appeals, with briefs and responses filed in July and August. Final briefs are due Sept. 2. As an indication of where the case might finally be resolved, Principal Deputy Solicitor General Paul Clement has played a large role in it on behalf of the government, the solicitor general’s office being the advocate for the Bush administration in Supreme Court cases. Newman has no idea when or where the case may finally be resolved, or even when the next step may take place. “Eventually, all things have to end,” she said. “But I don’t even know when we’ll get this before the 2nd Circuit. I don’t predict it will be soon.” Former U.S. Attorney General Richard Thornburg, who served under President George H.W. Bush, seemed to think, as many do, that the case will wind up before the nation’s highest court. In a recent interview with Court TV, he said, “The administration is going to press the envelope as far as they can.” Patel also suggested an unusually long period of litigation, noting, “There is nothing routine about the area of law involved in this case. For that we can be grateful. “Imagine what this country would be like if you had a bar of attorneys who, in their daily practice, were familiar with all the connotations and permutations of the law of war,” he added. “We are blessed with a country that hasn’t had an enemy soldier set foot on it in almost 200 years. “We’ve been fortunate in that other attorneys and non-attorneys familiar with [military] law and history have been so generous with their time.” AMICUS FOR PADILLA Among the generous is Donald G. Rehkopf Jr., a historian and military law specialist with the Rochester firm Brenna & Brenna. On behalf of the New York Association of Criminal Defense Lawyers and its national body, Rehkopf filed an amicus brief in Padilla, arguing that the court — not the military — was the proper venue for deciding the fate of Padilla. In his brief, Rehkopf included the perspective of the late U.S. Supreme Court Justice Robert H. Jackson, who served as chief U.S. prosecutor during the Nuremberg Military Tribunals following World War II. In Youngstown Sheet & Tube Co. v. Sawyer [343 U.S. 579 (1952)], a seminal case discussing limitations on presidential war power, Justice Jackson said the president’s role as commander in chief grants him “no monopoly on ‘war powers,’ whatever they are.” But in a press conference held on June 10, 2002, Attorney General John Ashcroft said Padilla’s designation as an enemy combatant and his incarceration without benefit of legal counsel had been handled “with legal authority, both under the laws of war and clear Supreme Court precedent.” Ashcroft’s position is disputed in nine amicus briefs filed thus far for the plaintiff in Padilla. Among those involved in amicus briefs are 14 retired federal appellate judges and former government officials, including Abner Mikva, Harold Tyler and Philip Allen Lacovara; more than 100 law professors; military law experts such as Stephen Saltzburg, general counsel for the National Institute of Military Justice; libertarian and conservative legal associations such as the Cato Institute and the Rutherford Institute; the politically moderate Constitution Project; the left-leaning National Lawyers Guild; the Lawyers Committee for Human Rights; and the American Bar Association. NO FREE TIME The rush of support from Newman’s friends — new and old, lawyer and non-lawyer — is welcome, Newman said, though sometimes there is nothing brief about eliciting briefs. Certain other support — such as the spontaneous cheers from fellow gym members when she was still able to get in workouts — is “sort of embarrassing,” she said. But with a workday that now begins at 6 a.m. and typically ends at 10 p.m., time for a personal life has disappeared. “I don’t have any free time,” said Newman, 54, who enrolled at New York Law School at age 35 after a career as a speech pathologist. “Free time doesn’t exist.” After investing a good deal of time combing through sealed court papers the Justice Department was obliged to reveal, Newman concluded that the government’s case against her client relies on two informers: one with a drug problem, she said, and the other who has recanted. From this, she draws confidence, along with a bit of disdain. “I have a certain steadfast ability to challenge what’s placed before me,” said Newman. “Innately, it just ain’t so just because they say these things.” When Newman entered law school, criminal defense “was the furthest thing from my mind,” she said. “But I always liked the Fourth Amendment. And because of my other career, I think I understand people’s needs.” That a case such as Padilla’s should wind up in her small office — a case of constitutional magnitude — does not fluster Newman. “I should say, what — Oy, what am I up against?” she asked. “No. I say to the government, OK, you’ve said all these things, you’ve made up all these wild allegations. So what have you got? “Like I tell students at New York Law School when I go back there, ‘Things come to you — so try it.’ “

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