TD Blog Interview with Michael Ratner

Michael Ratner is the president of the Center for Constitutional Rights, a legal advocacy group based in New York City that has spearheaded and coordinated the representation of detainees at Guantanamo Bay, Cuba and been at the forefront of Guantanamo related litigation. C.C.R. has also handled matters pertaining to extraordinary rendition and handled numerous litigations related to the war on terror, and handled its “usual” extensive caseload in the constitutional and civil rights areas in general. Mr. Ratner is the co-author (with Ellen Ray) of “Guantanamo: What the World Should Know.” On July 20, 2006, I had the privilege of speaking to Mr. Ratner by telephone. What follows are my interview notes, as corrected by Mr. Ratner.
The Talking Dog: The first question I usually ask is “where were you on September 11th”?
Michael Ratner: I happened to be jogging from my house in Greenwich Village downtown along the path the runs along the Hudson River. I had jogged to where the World Trade Center was (it was then on my left), when I heard a large explosion. I saw flames coming out of the North Tower, and I ran back toward the North Tower. I thought it might be a gas-leak explosion. From that location, you could see the outline of an airplane having crashed into the building. At that time, I had no sense that this was terrorism… it didn’t look like terrorism, but a bad accident.
People all around had stopped and were calling people on cell-phones. While still there watching, we saw another plane approaching. At first I thought it was coming to inspect the other tower, or maybe even drop water on it. But then it curved, and went into the building. At that point, I just took off and ran back to the Village… who knew whether we would be under a more general attack?
For the next three weeks– you know this– you were in the City– the City felt funereal. There were signs looking for lost loved ones, people were just walking around incredibly sad. Most people were shell-shocked– this leads to a recognition of how devastating any bombing or war can be to a socierty– this is what war and bombings do to a society… you could say this ultimately renewed my sense of pacifism, or at least… thinking in that direction.
The Center for Constitutional Rights is, of course, in downtown Manhattan as well. Within days of September 11th, we were getting phone calls from Muslim families– their men were disappearing– picked up by the immigration system. We had some Arabic speakers, and they began trying to look for these people in the system.
And this began the first part of our work in the aftermath of September11th– the 1,000 or 1,500 Muslims who were picked up shortly after on some of the most minor of immigration violations. And many were heavily abused in INS custody, and are still the subject of pending litigation.
There was a report from Inspector General Fine (overseeing the INS) pretty much confirming what happened. There was anger on the part of guards, and many detainees of the immigration system were heavily abused, Many of these cases have been settled. In other cases, the INS kept people in custody well beyond the time that they would normally hold them for deportation.
This was a symptom of something larger. I believe that in the nervousness that followed September 11th, the attacks were used by the governement as as an opportunity to expand presidential power and to reduce our individual rights. Hence, within 6 weeks of 9-11, we get the PATRIOT act passed, which has enormous implications in terms of, for example, surveillance and wire-tapping and the definition of terrorism and terrorist activities.
On November 13, 2001, the President issued Military Order Number 1. That got the Center for Constitutional Rights deeply involved. It looked like, from that order, Bush wanted to literally take over the country– he claimed authority to be able to capture and hold any non-citizen indefinitely. Plus, he gave himself the right to try non-citizens by military commissions– which of course, have just been held unlawful in the Hamdan case . And, of course, he did this not even by legislation– but by military order. We decided right then and there that C.C.R. would represent those detained or tried; we originally expected the issue to be about the trials, rather than about the detentions.
At that time, we couldn’t get that many lawyers to help. No one knew what was involved, or even who we were holding… it was all done in secret. We pulled together a team of lawyers, including Eric Freedman from Hofstra Law School, Joe Margulies from the University of Chicago and Clive Stafford Smith from England… and then we got a call from an Australian lawyer who was representing David HIcks…
The Talking Dog: That would be Steve Kenny?
Michael Ratner: Correct. (I see you know this stuff cold.) Kenny called and we got to represent Hicks, and we got our first client and filed a habeas corpus case.
A short time later, Tom Wilner of Shearman & Sterling in Washington filed a case for a group of twelve Kuwaitis whose families had retained him, and we have coordinated with him. We have had an excellent working relationship with Tom and his associates. Joe and Eric were experts on habeas matters.
With Clive’s help, we managed to represent the English detainees– the Tipton guys– and then, we coordinated our work with the Kuwaitis as well. The key issue raised originallly was very simple: can we get into the courthouse door in an American court, with our clients in Guantanamo Bay. There was some very, very bad law– Eisentrager is a terrible case for us. I had previously been involved in litigation over Haitian refugees at Guantanamo; we won at the district court and circuit, but that case was not considered to be of precential value.. Another case on behalf of Cuban refugees lost in the 11th Circuit…
With our cases for the 9/11 Guantanamo detainees, we lost in the District Court and in the Circuit Court.. we got an awful lot of hate mail about our representation of them. And then the Supreme Court took review, and things started to change. At least, for one thing, a lot of lawyers were more favorably disposed to what we were doing, and thought the issues we raised had some merit.
The Talking Dog: By then, of course, the President had designated Jose Padilla– a U.S. citizen– as someone he could also lock up and throw away the key– might that be the reason lawyers were suddenly more interested?>
Michael Ratner: That’s actually a very good point. The President’s assertion of the commander in chief power looked like it was limited only to foreign nationals (except, of course, to Mr. Hamdi, but he was picked up on the battle field at least). Padilla was a radical extension of extraordinary executive powers to the United States and citizens here.
All of the cases– Rasul, Hamdi and Padilla ended up being decided together– they were argued a week apart.
Yet another factor was taking place in the spring of 2004… I remember the argument in Hamdi on April 28, 2004… the Acting Solicitor General Paul Clement was being asked by Justice Ginsberg, “what if there is torture at Guantanamo?” and Clement said “but there isn’t… don’t worry… trust us!” And then, that very evening, CBS broadcast its story on Abu Ghraib and the pictures of the abuse there.
Of course, the Administration’s position was that the judiciary should be kept out completely– even if there was torture, the judiciary just shouldn’t have anything to say about it!
The Talking Dog: Have you personally, been down to meet with your clients at Guantanamo?
Michael Ratner: I haven’t even tried. In part, after representing the Haitians down there, and having been there, I knew it would just be too emotionally draining on me. Also, now that I have children, I didn’t want to travel so much. So, while I haven’t been down there, Gitanji Gutierrez from C.C.R. has been down there a lot. Since Rasul, over 100 attorneys have visited clients down there. Indeed, the Center is coordinating this. We now have lawyers from just about all of the biggest firms in the country doing some kind of Guantanamo work. The bar has really come through on this.
The Talking Dog: Can you tell me the status of the Arar “extraordinary rendition” case? Has an appeal be filed? And what other comment do you have on it?
Michael Ratner: Well, we haven’t appealed, because the judge did not totally dismiss the case; one issue remains, that being the mistreatment of Mr. Arar while he was in the government’s custody in New York. So, as such, there are jurisdictional issues associated with whether to seek an interlocutory appeal, and we are still looking at those.
Arar was a devastating case for a number of reasons– not just the result of a dismissal. The judge ostensibly dismissed what amounted to a political question– that somehow discovery in the case might embarass Canada and our relations with it. But, of course, Canada is doing its own investigation.
But I don’t know if you caught this– the worst part is a 2 page footnote, where the judge discusses torture, and discusses how it is wholly inappropriate to gather evidence that can be used against someone in a criminal case, but then states that it may not be unconstitutional– it is at least not clearly improper– in the context of torturing someone to try to thwart terrorist activity… so, that footnote– that appears to condone torture– might even be more disheartening than the decision itself.
The Talking Dog: Let me turn to the Hamdan case, and ask this…After the Rasul case, even though the Supreme Court “opened the courthouse door” to detainees, most remain at Guantanamo, apparently with an unclear path ahead of them as to when, if ever, they will be released or even charged with anything. In light of the recent ruling in Hamdan, do you have any comment on whether you believe things will change vis a vis detainee treatment or the ongoing decision to hold detainees, and in particular, I’m concerned with the apparent holding that the Geneva Convention protections apply to the Afghanistan conflict? Or do you believe that the Administration and Pentagon will likely ignore, or evade the court’s decision?
Michael Ratner: For our clients, Hamdan effects the issue of humane treatment. Common article 3 of the third Geneva Conventions applies to everyone across the board. So, issues like standing someone in a cell– what we’ll call ‘the Rumsfeld techniques” of using dogs, cold water, waterboarding… they are all out the window, period. We did, of course, already have the Army Field Manual, that said that we go beyond common Article 3 in interrogations– i.e., provide more protections than are required.
Then, of course, the people tried by the commissions will be directly effected by Hamdan.
Unfortunately, there are issues the Supreme Court didn’t address, such as the lawfulness of indefinite detention. Previously, in Hamdi, Justice O’Connor used restrictive definitions, supposedly limiting the applicability of the term enemy combattants and the President’s authority to the conflict in Afghanistan… But Hamdan did not address the indefinite detention issue outside of Afghanistan and that particular war.
Many of these issues are now before the D.C. Circuit, where constitutional and Geneva rights will be tested…
The Talking Dog: That would be in the Al-Odah cases?
Michael Ratner: Yes, the Al-Odah cases. Now, we’re litigating issues of due process there, and those may themselves end up going before the Supreme Court. Of course, the applicability of common Article 3… for matters beyond humane treatment, may not be so great… the Administration argues it means these guys can be held “for the duration of hostilities”… whatever that means… We will argue that they should be subject to applicable civil laws.
The Talking Dog: Do you see an “end game” or “exit strategy” with respect to Guantanamo, and for that matter, to the other detention facilities such as Bagram, Diego Garcia and others, particularly in light of the Geneva Conventions apparently applying to all prisoners from the Afghan conflict (and presumably the war on terror)?
Michael Ratner: The government is in pretty deep trouble with all this; right now, I don’t think it sees a way out. Their problem with conventional trials or even court-martials, is that they don’t have any usable evidence that isn’t illegal or coerced… they’ve got a problem as far as trying detainees.
And they’ve got a problem with detention. They’re building a more permanent prison at Guantanamo, but are you going to hold everyone forever? Where do you send them? The judge in the Uighur case said the government can’t be compelled to admit them in the United States, so what then? In many cases, their home countries would jail them, torture them, or worse… in the case of the Uighurs, the Administration sent them to Albania. So… what if the government can’t find other countries to take them?
It’s a problem– both for the government, and especially for our clients.
The Talking Dog: Let me ask you about what I’ll call a media or press failure, or perhaps a perception failure on the part of the public. Do you believe that the press and media have adequately discussed the inaccuracies in the “worst of the worst” and “picked up on the battlefield” canards that the Pentagon and the Administration keep reciting, and do you believe Guantanamo and the legal process in the war on terror has been adequately addressed by the press in a meaningful way? What about in the coverage of specific government officials, such as Gonzales becoming attorney general, or others becoming judges, even after writing memos actually advocating the use of torture? Is this part of the media failure, and do you think there is an explanation for it?
Michael Ratner: It is amazing how badly covered all of these things have been. Just amazing. Shortly after September 11th, of course, there was generalized fear. Certainly, the press corps involved with the White House wanted continued access to high officials, they didn’t want their press passes revoked… In general, people were frightened. I can only guess as to why things have gone the way they have.
After Hamdan, at least there has been great interest. Even the New York Times finally came out with an editorial pointing out that what the President was trying to do in Hamdan amountts to tyranny… it’s not about national security, so much as expansion of power. But certainly, Stevens’ opinion has gotten some people’s attention– and concern about whether we are becoming a police state.
To a great extent, there is a failure because of the lack of an independent media– especially in television and radio… and a great many people get their information from television.
The Talking Dog: Are there any other questions on these subjects that I should have asked you but didn’t, or anything else that the public needs to be aware of on these subjects?
Michael Ratner: We won the Hamdan case by 5-4… We avoided tyranny in this country by one vote of the Supreme Court. That is too slim for me. Justice Stevens opinion was dripping with sarcasm. The President says he doesn’t have to obey the law, and Supreme Court says that he does. And that proposition passed the muster of the Supreme Court BY ONE VOTE. Democracy is teetering on the edge. Hopefully, we will get through this chapter.
The Talking Dog: Mr. Ratner, I join all my readers in thanking you for your time, and for that informative interview.
Readers interested in legal issues and related matters associated with the “war on terror” may also find talking dog blog interviews with attorneys Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux,
Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in “the war on terror”), with attorneys Donna Newman and Andrew Patel (representing “unlawful combatant” Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainee Shafiq Rasul , with law professor and former Army J.A.G. officer Jeffrey Addicott, and with law professor and Coast Guard officer Glenn Sulmasy to be of interest.