Stanford Law School Assistant Professor Jenny Martinez went before the Supreme Court to argue one of the most important cases in decades. 

Jenny Martinez was on the hot seat. With only a week to go before oral arguments in Rumsfeld v. Padilla, the U.S. Supreme Court had denied her legal team’s motion to divide argument among the three attorneys defending their client, “dirty bomber” suspect Jose Padilla. Martinez and colleagues Donna Newman and Andrew Patel suddenly found themselves in the awkward position of having to pick a lead attorney to make the presentation before the court. 

“It could have been any one of us. It was a really hard decision,” said Martinez. No doubt it was, but what the modest 32-year-old Stanford Law School assistant professor doesn’t mention are the standout qualities that led the team to pick her: Martinez’s stint as clerk to Judge Patricia Wald at the U.N. International Criminal Tribunal for the Former Yugoslavia in The Hague; her impressive command of the law of war; and her talent for clear and persuasive argument, which even Patel, a seasoned New York criminal defense attorney, found enviable. 

“She writes like an absolute dream,” said Patel. “She brings a whole realm of experience to this case and is delightful to work with.” Newman, the court-appointed criminal defense attorney first assigned to the Padilla case, was similarly impressed. “Her unique knowledge of international law was something we were looking for,” Newman said. “She’s clearly brilliant.” 

And so it was that Martinez, a Class of ’97 Harvard Law graduate, landed smack in the center of what has all the makings of a landmark case. Rumsfeld v. Padilla presents a stark showdown of individual civil liberties versus national security interests, with profound ramifications: how far can the U.S. government go in seizing and holding Americans in the United States as so-called “enemy combatants”? 

If you ask Martinez, not so far as to deny a U.S. citizen his basic rights to habeas corpus and due process. “In this case, the executive branch claims basically unlimited power to lock up any American, anywhere, at any time, forever, without any access to a lawyer or without any kind of real hearing. That’s an extraordinary power,” she said, “to deny people liberty without due process of law. It’s not one that any president in American history has ever claimed before.” 

With only a week to prepare for her April 28 court date, Martinez got an unexpected call. “Our realtor said, ‘I found the perfect house for you, but if you want it, you have to make an offer right away.’ I was just, ‘Oh, no,’” she said. Martinez, who is engaged to a Silicon Valley engineer, had just enough time to check out her future digs before taking off for the East Coast. 

First stop: New York, where she met with members of the Padilla legal team, including Newman, Patel, and Jonathan Freiman of Wiggin & Dana. She also recruited international law scholar Harold Koh, incoming Dean of Yale Law School, who tested her mettle with a moot court. Then it was off to Washington, D.C., where she met with David DeBruin, also a member of the Padilla legal team, and other co-workers from her old law firm, Jenner & Block, for yet another grueling moot court. 

It was while visiting Yale in 2002–03 as a senior research fellow working with Koh’s litigation course on civil liberties that Martinez first studied the Padilla case in earnest. Padilla, a U.S. citizen, was seized by authorities at Chicago’s O’Hare Airport in May 2002, after arriving from Pakistan. The government claims Padilla, a Brooklyn, N.Y., native who converted to Islam and moved to Egypt, received explosives training at an Al Qaeda terrorist camp and was part of a plot to detonate a radioactive-laced explosive in the United States. 

Without being charged, Padilla spent a month in a New York jail on a material witness warrant as part of the grand jury inquiry into the 9/11 attacks. Then, on June 9, 2002, the Bush administration declared Padilla an “enemy combatant” and a “grave threat”to national security, taking him into military custody. He has been in a Charleston, S.C., Navy brig ever since, with only one supervised visit with his attorneys permitted. 

Seeking outside help, Newman and Patel consulted Martinez, who in August 2003 drafted an amicus brief on behalf of Padilla. Last November, Martinez presented oral arguments with Newman and Patel before the U.S. Court of Appeals for the Second Circuit. Attorneys for the Bush administration maintain that the President has the executive authority to detain persons with suspected ties to terrorist organizations as a way to prevent further attacks and maximize intelligence gathering. That court found in favor of Padilla, but the federal government challenged the ruling, taking the case to the Supreme Court. And that is when Martinez joined the team as co-counsel. 

Luckily for Martinez, the halls of the nation’s highest court are familiar terrain: five years ago, she clerked for Justice Stephen Breyer. “There’s a little comfort that comes from familiarity” with the setting, she said. “But you’re still very nervous, because you want to do your best.” She spent her final day of preparation at her mother’s home in Washington, D.C., where she grew up. Inside the courtroom the next day, Martinez had the support not only of her parents in the audience, but of her students back at Stanford, who listened to the proceedings on C-SPAN, and a cheering section of Yalies, who drove down from New Haven, Conn., to catch her in action. 

“Everyone told me it would go by really quickly,” she said of her 30 minutes on the firing line, “but I thought it lasted forever.” While Martinez’s former mentor, Justice Breyer (BA ’59), gave her a fairly wide berth to make her points, at one point Justice Anthony Kennedy (BA ’58) challenged her interpretation of Congress’s authorization for use of force in Afghanistan. As she offered an explanation of terrorism legislation in the United Kingdom and Israel that the United States might emulate, Justice Sandra Day O’Connor ’52 (BA ’50), a frequent swing vote on the Court, voiced a note of impatience. “Well, that would be, of course, perhaps, desirable, but we are faced with a situation of the here and now, and what do we do?” asked the Justice. “We just turn loose a ticking time bomb?”

 “No, Your Honor,” replied Martinez. “Were this Court to rule that Congressional action was required, I have no doubt that Congress would step into the breach very quickly to provide whatever authorization the executive branch deemed necessary. . . . After two years in detention, without any sort of hearing, without any access to counsel, it’s more than appropriate that he be charged with a crime unless Congress comes forward with some alternative scheme.” 

As this story goes to press, whether the court will agree with Martinez has yet to be determined. (A decision is expected in late June.) Whatever the outcome, Martinez is convinced the debate is important, especially now, as the war on terror seems to have no clear-cut V-Day. “It’s important to remember what it is we’re defending in the war on terror,” said Martinez. “And part of what we’re defending is the American way of life, which is a free and democratic society based on the rule of law. That has to remain central.”