Donna R. Newman listened this week as a senior Justice Department prosecutor fired an impressive barrage of charges at her high-profile client. Jose Padilla, the government asserted at a news conference, trained at al Qaeda terror camps in Afghanistan and came here to blow up apartment buildings in New York and elsewhere, and perhaps set off a radioactive "dirty bomb."
Under ordinary circumstances, prosecutors would be legally required to file an indictment detailing these accusations. But Padilla's is no ordinary case. Newman pondered her legal options for responding -- and concluded they hovered between few and none.
"I listened to [the prosecutor] and thought: 'Okay, that's his opening statement,' " Newman said. "Now when do I get to speak up? Everything my client says to me is classified. I can't offer any defense.
"All I know is we've come a long way since the Magna Carta."
Newman first met with Padilla, a former gang member and Muslim convert, shortly after he was arrested in May 2002 at Chicago's O'Hare International Airport. A few weeks later, President Bush designated Padilla an enemy combatant and ordered him held indefinitely -- without charges or access to a lawyer -- at a naval brig in Charleston, S.C. This spring the Pentagon finally allowed Newman to meet again with Padilla, but only if two government officials monitored and videotaped their conversation.
Newman cannot publicly discuss her conversation with Padilla.
Until the Supreme Court rules on the constitutionality of Padilla's arrest and detention -- a decision expected later this month -- legal scholars and civil libertarians are left to debate the Bush administration's assertion of presidential war and legal powers. And Newman must scramble to figure how, exactly, she can defend this most unusual client.
"The limbo that surrounds Padilla surrounds his lawyers as well," said Stephen Gillers, a professor of legal ethics at New York University. "Newman's working in wholly uncharted territory."
From the beginning, the Justice Department prosecutors have argued that this is not a criminal investigation but an interrogation in a war on terror. The legal tactics required are different, and far less constrained by civil liberties. "We could care less about a criminal case when right before us is the need to protect American citizens and to save lives," Deputy Attorney General James B. Comey Jr. said of the Padilla case this week. "This was not undertaken to try to make a criminal case."
Several prominent legal critics of the administration agree that there is a legal precedent for holding U.S. citizens as prisoners in wartime -- not least a war on terror. But they said the executive branch must concede a brake on its powers.
"My view is that the government ought to be able to hold someone as an enemy combatant for the course of the conflict with al Qaeda," said David Cole, a law professor at Georgetown University Law Center and author of "Enemy Aliens," about the detention of foreign nationals during the war on terror. "But some process has to be put in place so that those who are not fighting for al Qaeda have a chance to prove it."
He noted that the Geneva Conventions allow for holding enemy combatants, providing the prisoners can obtain a hearing. During the 1991 Persian Gulf War, he said, the American military held 1,200 such hearings and ended up releasing 800 of the prisoners. Michael Ratner of the Center for Constitutional Rights, which represents defendants held at Guantanamo Bay in Cuba, said that the Bush administration has arbitrarily chosen when to assert such war powers.
"Too many defendants get the worst of all possible worlds -- they are getting war without the rules of war," Ratner said.
Other legal scholars take a more sympathetic view of the administration's task, arguing that it is too early to give Padilla unfettered access to the American legal system. "The government's release of information this week was alarming," said Ruth Wedgewood, a former federal prosecutor and a law professor at the Johns Hopkins School of Advanced International Studies. "The real nub in this case is over how and when do you inject the adversarial element into the process."
Should the Supreme Court rule in favor of Padilla, Wedgewood speculated that the Bush administration would ask Congress to allow it to imprison him indefinitely. "The moral conundrum," she said, "is what to do about a man who has alarming intelligence."
The Justice Department's Comey raised another prospect: that Padilla, a "soldier" trained in the arts of terror, would have refused to cooperate if he had an attorney. "He would very likely have followed his lawyer's advice and said nothing," Comey said.
That argument strikes Newman as far-fetched. Without conceding anything in this case, she noted that the government has considerable powers of persuasion when dealing with defendants accused of terrorism. "It's a lie that we wouldn't cooperate," she said. "Every day of the week defense attorneys advise their clients to cooperate to avoid draconian sentences."
Comey, however, insisted that it could prove difficult to convict Padilla in a civilian court. The tactics needed to extract a confession from Padilla -- which include secret testimony from captured terrorists held and interrogated overseas -- would not be likely to pass muster in a civilian court.
"We deprived him of access to his counsel and questioned him in the absence of counsel," Comey said. He added later: "Criminal charges might not be an option someday."
This raises the possibility that Padilla might find himself in a legal Catch-22, too difficult to prosecute and too dangerous to release. Newman fears this future. "The indictment is missing, the trial is missing, the lawyer is missing," she said. "I just find it very hard to believe that the Supreme Court will say it's okay to throw this man into a black hole forever."