Jose Padilla

The Battle Within

As she winds through traffic into the Holland Tunnel, Donna Newman has little time to enjoy the cool weather that has overcome New York in the last week of August. For more than two months, she's been working to persuade the court — and to some degree the American people — that Jose Padilla deserves at least to be represented by an attorney.

The government sees things differently. In a voluminous brief filed in the U.S. Court for the Southern District, federal lawyers challenged Newman's request of a writ of habeas corpus on Padilla's behalf. Newman's petition named President Bush, Defense Secretary Rumsfeld, Attorney General Ashcroft and Commander M.A. Marr, the warden of the military brig at Charleston, as respondents.

The government argued that the Mukasey court, the same court that ordered Padilla's arrest as a material witness in May, lacks jurisdiction since Padilla was transferred to South Carolina. The court also lacked jurisdiction to summon the president and his cabinet as respondents, the government brief maintained. If the court were to find that it actually had jurisdiction, they maintained, only Marr, a low-level Navy officer, should be compelled to answer the complaint. Finally, the federal lawyers, who contend that as a prisoner of war, Padilla is not entitled to a lawyer, also challenged Newman's right to act as "next friend" when she filed the petition on his behalf.

"First," the lawyers wrote, "the Court lacks jurisdiction because the petition has not been properly brought...the habeas statute requires that the detainee himself sign the petition, or if he is unable to do so...that someone with 'next friend' standing bring it on his behalf." Newman, the government lawyers argue, "does not...satisfy the 'significant relationship' requirement as set forth by the Supreme Court..."

"Second, and in any event, the Court lacks habeas jurisdiction because no proper respondent with 'custody' over Padilla is present within this court's territorial jurisdiction," the government brief continued.

Newman, in her 32-page filing, (which has since been amended to drop Ashcroft as a complainant) maintains that the government has far exceeded its authority and has violated Padilla's constitutional rights by unilaterally declaring Padilla a prisoner of war and holding him virtually incommunicado.

"While denying Jose Padilla access to both this court and his counsel," Newman wrote in her response, "the government has the temerity to object to Donna R. Newman, Esq. acting as Mr. Padilla's 'next friend.'"

"The government's arguments lack merit and suffer from an incorrect analysis of the facts and law."

President George W. Bush (AP)

Defending her decision to name the president and Rumsfeld as respondents, she wrote, "President Bush, as Commander in Chief, and Secretary of the Defense Rumsfeld ordered and directed Padilla's arrest, the transfer of custody from the Department of Justice to the Department of Defense...and the conditions of his detention... Padilla's absence from this district and his inability to (file a petition for habeas corpus on his own) are due entirely to the actions of (Bush and Rumsfeld)," she argued.

And on the question of Mukasey's jurisdiction she argued: "This court, having jurisdiction originally...should retain jurisdiction."

For the moment, the issue remains unresolved. A hearing is scheduled later this month.