The Washington Post reported on the brave lawyers of Jose Padilla, the only American citizen seized on American soil who has been declared an enemy combatant. Padilla’s lawyers, Donna Newman and Andrew Pate, are court-appointed by the U.S. District Court in New York City to represent Padilla. They are paid $90 an hour, a fraction of their going rate for "paying" clients.
But Newman and Patel are not representing Padilla because they are going to get rich (obviously) and get more business as a result (not hardly) or become famous (not likely, at least not in a "good" way). They are doing it for you and me–fighting for our Sixth Amendment rights.
The Sixth Amendment, as given life by numerous important Supreme Court decisions, gives us the right to counsel in a criminal proceeding. Jose Padilla and Yaser Hamdi are being denied that right. Hamdi’s case has already gotten through the first appellate stage, the 4th Circuit Court of Appeals, which easily stomped down his claim to have legal counsel. Padilla was appointed lawyers when he was being detained as a material witness in a government investigation into a "dirty bomb" plot. Under the enemy combatant rules adopted by the Pentagon, an enemy combatant has no right to a lawyer. But the judge ruled that Padilla should still be able to see his lawyers, even though Padilla was removed from the court’s jurisdiction and sent to a brig in South Carolina. The government appealed that ruling and the judge stayed his order that Padilla meet with his lawyers pending the decision by the 2nd Circuit Court of Appeals, which will likely be handed down this fall.
Padilla and Hamdi have not been charged with any crime; yet they are being held in prison for one reason: President Bush has named them "enemy combatants," meaning that they are not entitled to the benefits of the civil justice system. Bush has the dubious distinction of being the only President in history to name Americans unlawful combatants. If you don’t think that is a scary precedent, think about what you would do if it happened to you. You would disappear into the black whole of nothingness. The government will not tell your lawyer or your family where you are. You may never be charged. You may very well die in government custody. You may be killed by the government. No one will ever know.
Padilla has not been allowed to communicate with his lawyers since he was whisked out of the federal criminal justice system and sent to the navy brig. His lawyers write him and send him copies of their motions and briefs, but they have no way of knowing if he receives them. They assume that he does not. In essence, Newman and Patel do not have a client. So why are they continuing to fight this battle? They do so because they are in the tradition of lawyers who believe in the right of representation for its own sake.
New York Attorney Lynne Stewart was charged with acts of terrorism that arose out of her court-appointed representation of Sheikh Abdel Ramen, convicted of complicity in the 1993 World Trade Center Bombings. Michael Tigar, one of the best lawyers in the country, was appointed by Judge Koeltl to represent Lynne Stewart. Tigar’s hourly rate is stratospheric; he is not defending Stewart for the money. He is defending the right to defend. He convinced Judge Koeltl to throw out the terrorism charges, a resounding defeat for John Ashcroft, who wanted to show defense attorneys a thing or two by charging Stewart.
Thousands of attorneys in the U.S. today give freely of their skill and expertise to represent indigent defendants. It is among the most gratifying work that I do. My clients often do not "appreciate" my efforts, but I am doing it for a cause greater than my client. Like Newman, Patel, Stewart, Tigar, and others like me, I am defending the right of the indigent and the unpopular to be defended.
Don’t you hope that if and when you are taken off the street by Ashcroft’s thugs or a proverbial gun held to your head as prosecutors did in the case of the Lackawanna Six that you have someone like Donna Newman or Andrew Patel willing to sacrifice their financial well-beings and reputations to defend you?
Think about them the next time you crack a lawyer joke.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: firstname.lastname@example.org