This week, the next round in the Bush administration's epic struggle against 800 years of Anglo-American legal tradition will unfold as the Supreme Court hears the latest in the "Guantanamo cases." By Joshua Holland, AlterNet
The case will hinge on the question of whether detainees being held at the Guantanamo Bay naval base have the right to a day in court to challenge the circumstances of their imprisonment. At issue is the more fundamental matter of whether the president of the United States has the power to detain people indefinitely and without due process under the rubric of a nebulous "war on terror."
Since the attacks of 9/11, the Center for Constitutional Rights and its president, Michael Ratner, have been at the center of the battle; CCR's played David to Bush's Goliath from the very beginning.
Ratner and his colleagues are not new to using the legal system to keep the government in check, nor are they unfamiliar with the controversy that inevitably surrounds that process. The Center, born of the civil rights movements of the 1960s, has been at the forefront of human rights litigation ever since. CCR pursued the former Chilean dictator Augusto Pinochet in courts around the world and sued both the first Bush administration in an attempt to stop the Gulf War and the Clinton administration for bombing Kosovo. Ratner served as a special adviser to Jean-Bertrand Aristide, the former president of Haiti who was deposed in a U.S.-supported coup, and won a key war crimes case against former Bosnian Serb leader Radovan Karadzic.
But it's been the excesses of the Bush administration, especially at "Gitmo," that have thrust Ratner and what was once a radical legal shop into the international spotlight. "Here's Michael Ratner and CCR," Ratner said, "who were once considered to be firmly on the left but are now defending bread-and-butter constitutional issues that we never really thought would be in jeopardy, like habeas corpus." His involvement in what would become such a "mainstream" legal fight was "a transition for me personally as well as for the center politically," he added.
Ratner will be named the seventh winner of the Nation Institute/ Puffin Foundation award for "creative citizenship" this week. "I like the description," he said. "It's for taking on the status quo in a socially responsible way and in a way that required taking a risk. For me it's not the personal aspect, it's the acknowledgment that you have to take risks in this very difficult country if you want to make any real progress."
AlterNet interviewed Ratner at his New York home to discuss the case, Guantanamo and the ramifications of the so-called "war on terror."
Joshua Holland: Let's start with a little background on the case.
Michael Ratner: This all started shortly after the attacks of 9/11, in fact on Nov. 14, 2001, when the president issued what he called Military Order No. 1. Military Order No. 1 was what I call the "coup d'etat order," because it basically said the president could pick up any noncitizen -- at that point; it's now been extended to citizens -- anywhere in the world and hold them forever, and not allow them to go into a court to get what we call a writ of habeas corpus. That's the right to go to court and challenge your detention. So they could simply be held forever if they were a noncitizen and alleged terrorist -- not just Al Qaeda, but all "alleged terrorists." And the other part of the order said that if they were tried, they were to be tried by special military commissions.
So that's six weeks after 9/11, and we have what I called at the time the underpinnings of a police state. By that time, you already had the PATRIOT Act -- by Nov. 13 -- you had the roundups in New York City and around the country of noncitizen Muslims, with 5,000 of them taken to various jails, so you had a lot of bad stuff going on already. But that order of Nov. 13 was a power grab by the executive that I was just astounded by.
But, of course, that's not even close to what we have today. I mean when I look back at that time, what I thought was going on then was bad, but it's Mickey Mouse compared to what's happened since.
At the same time, you have to understand that people were still very nervous, the city was still mourning and it was a situation in which we were all still very frightened. There was that anthrax stuff and a lot of talk of sleeper cells everywhere. But when I read that order of Nov. 13, I said to myself: "We have to do something about this. We're going to represent the first people taken under this order." And even though there was talk at that time about how those being picked up were "the worst of the worst," I thought that this right, the right of habeas corpus, is so fundamental that it has to be defended. The difference between a police state and a nonpolice state is, fundamentally, whether the executive can pick you up and disappear you or whether you can go to a court and challenge the executive, whether you can say: "What's the legal reason you're holding me?"
Holland: That said, the Washington Post reported that you had misgivings at first about defending criminal cases -- that you were a New Yorker, you were here on 9/11, and that you at first wanted to defend the legal principle without defending anyone actually accused of being involved in the attacks. Tell me about that -- what changed?
Ratner: There were two issues that came up in terms of representing people. First, there was an institutional issue for the Center, and that was that we would be going in to defend those Rumsfeld had described as the "worst of the worst," and for all we knew we could be representing people who had actually been involved in the conspiracy to blow up the World Trade Center.
And at the first moment when I decided to take these cases, I said, "Look, what I'm fighting for is the writ of habeas corpus and the right to go to court." I wasn't saying that I would personally be able to defend someone involved in flying planes into the World Trade Center. I mean, I went into the law to represent people with whom I'm in general political agreement -- I looked at the law as a tool of social change.
So I had those doubts at first, but I've shifted because of what we've seen since then. First of all because of who's at Guantanamo. They're certainly not the worst of the worst; half of them have already been freed, and the people there are mostly the wrong people.
But we are representing a couple of people who the government claims are somehow involved with Al Qaeda -- Majid Khan is one. And, you know, he was tortured -- at least we think he was tortured -- he was taken to secret sites, and the idea that the government can do that is so ... medieval in my mind, that whatever Majid Khan is -- and I don't believe he was actually involved -- you have to offer people who the government claims were involved a real defense.
There were risks to the Center for taking those cases, and at the time we were the only human rights firm that was willing to move forward on them. Back then, the only lawyers who were willing to work on them were death penalty lawyers who are used to going into cases that are very unpopular.
So that's the background. And the first thing we filed was a writ of habeas corpus for David Hicks, who was an Australian taken on Jan. 11, 2002, to Guantanamo, a couple of English guys and some Kuwaitis. And in our first victory, the court said that the anathema with which executive detention is held exists because it undermines every other right you have -- if the executive can just put you in a cell and lose the key and disappear you without releasing your name ...
Holland: Let me just interrupt for a second here ... there's a clause in the Constitution that gives specific circumstances for the suspension of habeas corpus, right?
Ratner: It's called the Suspension Clause, and it says that the writ of habeas corpus can be suspended only in the case of invasion or rebellion.
Ratner: It's very narrow, and it's Congress that needs to suspend it. And, I mean, it's completely fundamental to liberty -- the actual habeas statute goes back to 1689 in England, but the concept goes back to the Magna Carta in 1215.
So we filed those writs, in February of 2002, for clients in Guantanamo who we couldn't speak with, who were being held incommunicado, who didn't even know we were working on their behalf. And the fact is that the choice of Guantanamo was obviously an intentional one because the Bush administration thought there would be no legal rights there. There's an early memo from Alberto Gonzales actually talking about how the government would have a good chance of maintaining its position that there were no rights at Guantanamo -- that it was essentially a law-free zone.
But we lost very quickly -- we lost in the district court and then in the circuit court.
Holland: OK, so just to clarify: The government's main contention in the case Rasul v. Bush was that Guantanamo Bay -- the American base -- wasn't sovereign U.S. territory, it was basically Cuban territory. Is that right?
Ratner: The administration maintained that they didn't have sovereignty over that territory; Cuba had ultimate sovereignty. And the word "sovereignty" was their sort of talisman, their way of saying: "This is Cuban.' And we're arguing: "No, the U.S. has complete 'jurisdiction and control' over the base."
Holland: So in 2004, you basically win on this question.
Ratner: In June 2004, we win. But here it gets a bit tricky. There are two parts of habeas: There's the constitutional right, and then there's the statute that implements the constitutional clause. The court's ruling went on the statute.
It's a critical victory -- the New York Times called it the most important civil rights victory in 50 years. It vindicates the decision of the Center for Constitutional Rights in taking on these cases and demonstrated that the risks we took were necessary for any lawyer who's serious about human rights.
And after that victory we got a lot of support -- from big-firm attorneys and small-firm attorneys and Republicans and Democrats -- people who just thought the idea of executive detention was just complete anathema to the Constitution and everything they stood for. The people who got this issue more than the American public were the attorneys, who were trained in these matters.
Holland: So you're getting more support from other lawyers, the detainees at Guantanamo are able to communicate with counsel, and that brings us to 2005.
Ratner: Right. By 2005, the government is going on the offensive, and they're setting up an alternate system instead of going to federal court -- a military tribunal system -- but they're mainly going to the Republican-controlled Congress, and they get passed what's called the Detainee Treatment Act, which strips habeas corpus from everybody at Guantanamo. And it did so by repealing the statute. So we get back in court again -- by "we" I mean the attorney in another related case -- and the Supreme Court says Congress didn't do it right. So in June of 2006, the court restores the right of habeas again.
We still at this point haven't had one factual hearing in a federal court. So we try to get a factual hearing for these Guantanamo detainees. But Congress wasn't done -- they were at it again, and they pass what's called the Military Commissions Act, and this time they learned from the Supreme Court's original ruling, and they stripped habeas completely, in every which way you can. Sadly, a lot of Democrats went along with that bill. It does other things that are terrible, like amnestying [intelligence officials accused of violating U.S. laws against torture], allowing evidence that came out of torture, all kinds of stuff.
At that point we went back into court and are now, on Dec. 5, going to the Supreme Court with 37 clients -- it'll be argued by Seth Waxman, who's not with the Center, on behalf of all the clients -- and the Dec. 5 case is the case that will, conceivably, determine whether the Constitution's suspension of the habeas clause protects people at Guantanamo, which, according to the government's view, is ostensibly outside the United States.
Holland: A direct challenge to the Military Commissions Act passed in October of 2006.
Ratner: Right. It's huge. Now, it's still going to mean more delay -- let's say we win, we'll still have a lot of work getting each person out. But I think that every single time the government has been faced with a real hearing, where they have to come up with evidence, the person has been released or sent home. So I'm confident that a large majority of people at Guantanamo will not be there in a year from now if we get them even a semblance of legal rights.
Holland: I want to move from the domestic law -- from that approach -- and touch on some issues of international law as well. We've seen Rumsfeld skipping a key NATO conference in Germany, and more recently he had to flee Paris to avoid -- depending on who you ask -- to avoid being entangled in legal problems resulting from U.S. torture policies. All of that gets to the concept of universal jurisdiction, which comes into force when a country is unwilling or unable to prosecute certain crimes in its own domestic courts.
First, have we reached that point? Are we living in a country where there's a culture of impunity? Are international remedies the only avenues for accountability, or is this case really going to determine that?
Ratner: That issue is somewhat different from the Guantanamo issue. Only the Supreme Court can determine whether the Guantanamo detainees get habeas corpus rights, because they're in U.S. custody. But Guantanamo isn't just about detention -- there's torture involved. And other courts can determine the issue of accountability. So we're trying to get rights for the detainees to test their detentions, but at the same time, torture, and other related activities, is also a violation of the law.
So the second question is how do you get accountability for U.S. officials who have violated that law? And in that sense, we're living in a closed system in the United States. There is absolutely nothing on the horizon indicating that accountability is going to be there for what Rumsfeld, Bush, Cheney have done. We're talking about torture, the illegal war in Iraq, for what's called "extraordinary rendition" -- sending people to be tortured -- for the disappearances, for holding special military trials. These are a series of fundamental human rights violations that we at the Center have in the past sued other dictators for when they entered the United States.
So if I -- or the Center -- want to get accountability for Rumsfeld's torture techniques, which are open and acknowledged, or waterboarding, which is open and acknowledged -- these are clear violations of the universal right to be free of torture, and of our own convention against torture, passed by the United States -- we could not do that in the United States.
Look at the avenues. Congress has been milquetoast, even under the Democrats. There's not been one serious hearing on the origins of the torture program, not one serious hearing on waterboarding in which they've brought people to task. So Congress, sad to say, is dead in the water in terms of accountability. Certainly nobody at the Justice Department is going to do anything about it.
In the courts, there have been a series of cases filed directly against Rumsfeld and others for torture and on all of them so far, the courts have found that those people are either immune from suit or the cases would expose "state secrets" and you can't litigate them.
Lastly, the population is very quiescent on these issues, although there are strong grassroots groups working against torture. So the country is basically a hermetic system -- there's nothing we can do in the short term, and maybe not in the long term, to get accountability here, so what we've had to do is go abroad.
There are now two kinds of cases going on in Europe. The cases against Rumsfeld are universal jurisdiction cases, where torture can be prosecuted anywhere in the world. And I'm feeling pretty good about the Rumsfeld cases, because they're getting notoriety and people are understanding what's going on. We're making the world smaller for Rumsfeld -- he's not going to go back to France or Germany -- and in January or February we're looking to file in Spain, and in Spain you have Guantanamo detainees who were tortured under Rumsfeld's program and that gives the Spanish an extra incentive -- they can't just bury the case because there were Spanish citizens involved.
Holland: And you've said that you will continue to go after these officials for torture, even after they're out of office.
Ratner: Oh, yes. In fact, the case in Spain is already far along -- I've been spending more time in Europe than I ever did to get these cases going.
Holland: Might this go as high as George W. Bush himself?
Ratner: Well, we didn't name Bush or Cheney in any of these cases because they, as current office holders -- as essentially heads of state -- have immunity from national courts. They wouldn't be immune from a U.N. court, if there were ever a kind of Nuremberg Tribunal -- but they are from national courts. So while we have them named as unindicted co-conspirators, we don't list them as actual defendants. But we certainly will, afterwards, and ...
Holland: Wait, let me make sure I got that. You're saying that after 2009 -- January of 2009 -- you will be adding them to the complaints?
Ratner: Oh, absolutely. They're on the hook then. And it's going to be a hot world for them, because the world knows this -- this is an emperor's new clothes situation, because everyone in the world knows that the U.S. is running a torture program. You have to remember, this wasn't kept secret. And in my view, it was purposely exposed either because there was a desire to get vengeance, or because of machismo, or just to say to the Muslim world: "If you fall into our hands, we're going to take you to Guantanamo and we're going to torture you" as a way of controlling that population. It's been done intentionally and openly, and they've gotten the American public, somehow, to go along with it. They've convinced many people that they're safer, or that these are just a bunch of Muslims, and we don't give a damn what happens to them.
Holland: Let me take a step back from these cases for a second and ask about the larger picture. All of this comes in the context of a post-9/11 world, and we've spoken about how the Democrats have been involved not only in authorizing the war on Iraq, but at every stage there has been at least a group of Democrats who have gone along with the administration. So I want to get into the question of framing the issue of terrorism as a "war" in the first place.
After 9/11 there was almost a consensus that we would go to war against Al Qaeda rather than approaching it as a law enforcement issue -- the same way that organized crime gangs, for example, are dealt with. But throughout our history, the civil liberties standards have always been lowered during wartime. So what was the consequence, in your view, of not pushing back, early on, against the narrative that we needed to wage a "war" on terror?
Ratner: I think this is the most crucial issue ... this is not just in the past, it's also in the future -- this is the crucial issue in all of these debates.
The narrative that happened after 9/11 is a narrative that I didn't accept. I wrote at the time that it absolutely had to be treated as a criminal act. You cannot take a terrorist gang, a mafia gang or any other group and say that it's a war against that gang, because what happens is that you take what are the loosest set of rules we have for dealing with human beings, which are the rules of warfare -- and you apply them where they don't apply.
And then you need to apply them selectively, because they don't really fit. So you can say on the one hand that the law of war allows us to hold people until the end of a conflict, but that means until the end of a particular conflict that's going to last some number of years. The assumption is that there's another country on the other side, that you'll negotiate issues like prisoner of war exchanges. But when you use that for a terrorist band, and you say the laws of war apply, well the war against "terror" never ends, so you're claiming the right to hold those people forever.
So by using that analogy, what we've actually set up is a massive preventive detention scheme that has nothing to do with real war, but has to do with criminality. The president can say: "The world is my battlefield, even the United States, and I can pick up Michael Ratner or Joshua Holland tomorrow, and I can hold them as enemy combatants forever, with minimal process, even though they're U.S. citizens, and never even charge them with a crime."
And the idea that that wasn't challenged early on -- and I agree that progressives didn't even take it on -- is incredible.
Now, let's be clear: You can use force against terrorist bands, and Congress authorized that. But does that use of force mean that, after you capture somebody, you can detain them forever? It doesn't follow -- just because you can use force against some group doesn't mean you can hold people indefinitely. But people just don't get it. I don't know if it's falling on deaf ears, but I think we've lost the debate in the United States and I think we've lost it even among some progressives, and that's all related to the so-called "war."
What we've done here is made this into a global conflagration in which you're treating alleged terrorists as warriors, as if it's the U.S. against another huge force, and what that allows you to do, of course, is to completely eliminate and destroy civil liberties at home and abroad. All that when we may have been initially facing a band of only a couple of hundred people.
And of course you have the next stage, which is Iraq, and although there were a lot of lies told about Saddam Hussein and Al Qaeda and all that, it was the war paradigm that allowed them to tell those lies in the first place.