Since then, happily, hundreds of lawyers around the country have overcome their reluctance and joined in a broad effort to represent war-on-terror detainees, which they see as a matter of upholding basic legal principles, such as the right to due process, against an unprecedented executive assault.
It makes sense that Ratner was one of the few lawyers to take a stand early on. After all, he'd already fought -- and beaten -- the US government when, in the early 90s, it claimed broad power to detain hundreds of Haitian asylum seekers on the grounds that they (or family members) were HIV+. The detention camp in that case, it's worth remembering, was at Guantanamo.
Ratner and the CCR are litigating a broad range of cases that turn on an equally broad range of questions. Taken together, the outcomes of these cases will define the relationship of the executive branch to the law for generations to come.
Ratner recently spoke by phone with Mother Jones.
Mother Jones: How did you become involved with the torture cases?
Michael Ratner: I became involved back in November 2001. The President had just issued a military order saying he had the power to indefinitely detain any non-citizen who he believed was involved in international terrorism. The idea that you could pick up people anywhere in the world and hold them forever without a trial is outrageous. We at the Center for Constitution Rights (CCR) decided that we would represent the first people who were detained under that military order. In early January 2002, we got authority to represent David Hicks. We began looking for other lawyers to help us in these initial cases, but couldn't find many outside of the office and the death penalty lawyers who we had originally gathered around us. Nobody else, no other human rights or civil rights organization would get involved in the cases. It was only about three months after 9/11 and I think they were terrified of these cases, of the public reaction.
MJ: Were you surprised by this?
MR: That much reluctance by bread and butter civil rights organizations, and even some progressive lawyers, was surprising. If it was true what Rumsfeld said—that the people they were taking to Guantanamo had tried to kill 10,000 Americans—it would cause anyone to question representing them. But this was a case that was regarding a fundamental principle, going back to the Magna Carta in 1215, about the right to have some kind of a hearing before you get tossed in jail.
MJ: How many Guantanamo detainees are you representing?
MR: I started personally representing the ones in the Supreme Court along with Joe Margulies, Clive Stafford Smith, and a few other lawyers. Once we won in the Supreme Court case [Rasul v. Bush], we got authorizations from family members to represent about 100 detainees. What the CCR did was to get other lawyers, who are now more willing to represent these detainees, to directly represent these people.
MJ: Are you working on representing any people who were detained in Iraq or Afghanistan?
MR: Yes. We have at least two cases pending. We represent close to one hundred people who were tortured at Abu Ghraib and other prisons around Iraq. We have a lawsuit against the private interrogation companies Titan and CACI. That case is pending in Southern California. The other one is on behalf of about 17 Iraqis against Rumsfeld and 10 other high officials in a German court. We're trying to get a criminal investigation of Rumsfeld and the officials regarding torture.
MJ: What are the details of that case?
MR: We filed an affidavit in the German criminal case which basically said there was a conspiracy to commit torture and that, with Gonzales and Rumsfeld at the top, there's a conspiracy to cover up the torture. That was my case, and I went to Berlin to file it. Germany has what they call "universal jurisdiction" to prosecute war crimes wherever they occur in the world. And some of the people who allegedly committed the torture—General Sanchez, and Colonel Pappas, head of military intelligence brigade in Abu Ghraib—are actually living in Germany right now. So we went after them because they were there. We asked for a criminal investigation, but Germany dropped the case. But, I'm confident we're going to win the next round of appeals. They're going to have to think about opening a criminal investigation. It's a bit difficult because the U.S. has tried to intimidate them. Rumsfeld said that he wasn't going to go to the Munich Security Conference if the case wasn't dropped.
MJ: What are the other cases you are currently pursuing?
MR: There is a scattering of other cases. For instance, we are representing some former detainees who have been released, and we filed a damage case against Rumsfeld. We're probably going to be adding some others who have just been released as well. We've set up a Guantanamo Justice Project at the CCR that we are separately staffing and making a major part of our work with three lawyers working almost full time for the project.
MJ: Rumsfeld is looking to move about half of the Guantanamo detainees to other countries. Do you see this as a step forward or back?
MR: It's a complicated question. Obviously we want the camp closed. We want indefinite detentions and torture ended. But, they're currently building a permanent detention facility and looking to expand the number of cells. So, essentially, we're looking at a permanent U.S. facility off-shore—so we're going to have to continually press them in litigation. We’re probably still going to be fighting this fight when you and I talk next year. The problems we're faced with in terms of prisoners being sent to other countries depends on the client. For example, if 100+ Saudis are sent to Saudi Arabia and put in jail, it's likely that they’re going to be tortured because it is well known that this happens there -- even according to our own State Department. In those cases, we are trying to insist that the government give us notification of what countries the detainees are going to be sent so that we can get a chance to litigate the question of whether sending these people to Saudi Arabia is in compliance with the Convention Against Torture. For a lot of our clients, it could be fatal to be sent to their home countries. It is a different case for detainees who may be sent to certain countries like Kuwait. That's conceivably a positive step from Guantanamo. The Kuwaiti government is actually paying for the lawyers to litigate on the Kuwaiti prisoners' behalf. So they may have a very different attitude than the Egyptian, Saudi, or Pakistani governments.
MJ: What do you think the intent was in saying they were going to move half these prisoners out of Guantanamo?
MR: The litigation is brutal for them. It's huge. We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder to do what they're doing. You can’t run an interrogation and torture camp with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there? Lawyers are down there to interview their clients, and statements that are coming out on a weekly basis referring to sexual abuse, religious abuse, the use of dogs.
What we are finding out—though I think there has been recognition of for a long time now—is that most of the people in Guantanamo have no useful information and are not dangerous. While we may not be having many victories in freeing people, we're winning heavily in the litigation.
MJ: Are you generally pleased with the court rulings thus far?
MR: The litigation has done much better that I had expected. In the beginning, I never would have expected the Supreme Court victory [Rasul v. Bush]. District Judge Joyce Hens Green's opinion afforded Constitutional rights in Guantanamo, and said it is not acceptable to use evidence from torture. She also said that the Geneva Conventions apply. These are all great rulings. What has been frustrating is that our clients have suffered tremendously during these three years and we still don't have most of them out.
MJ: The Bush administration, taking its cue from the Gonzales memo, seems to claim their justification for these extra-legal actions as the unprecedented nature of the conflict. In your opinion, is there a dearth of applicable law in investigating and prosecuting terrorist suspects?
MR: Certainly not. Colin Powell responded to Gonzales' January 2002 memo by stating that he was wrong—that we have to apply Geneva Conventions. He emphasized that we have a 100-year history of applying the Geneva Conventions and that the Geneva Convention interrogation procedures are not outmoded. What’s going to happen to U.S. soldiers when they go overseas if other countries don't think they have to abide by the Geneva Conventions? We have soldiers all over the place who are very upset at the administration. What Gonzales was really saying in the memo was "Geneva Conventions don't apply because it's a war crime if there's a violation of Geneva Conventions and we don't want to be prosecuted for war crimes."
If you want to prosecute terrorists, there are plenty of criminal laws to use. You don't have to make up special new laws like military commissions or holding people indefinitely. You can use regular criminal law and prosecute them for anything in the world. Or, if you are going to prosecute them for "war crimes," you can prosecute them under court martial—in which you have a whole slew of things you don't get from military commissions—you have charges, real lawyers; coerced statements can’t be used, you have appeals to civilian courts, you have a whole panoply of due process that is completely legitimate. The administration has plenty of alternatives. They have instead disregarded fundamental laws.
When we won the Supreme Court case, Rasul v. Bush, the justices cited the Magna Carta because I think they were so upset. They essentially said that since 1215 it has been illegal to have executive detentions. What this administration decided to do was get out from under a thousand years of laws, take a huge amount of power for itself, and disregard both criminal law and military law. They are simply picking and choosing which laws they want to follow.
MJ: Can you talk more about what legal justifications the administration is picking and choosing from?
MR: On the one hand the Bush administration is applying the laws of war because they like the parts of these laws that allow them to keep people to the end of war. But, of course, the laws of war were never written with the idea that you would keep people to the end of an indefinite war that would go for fifty or one hundred years. They like that principle, but they don't want to give detainees any of the rights they have under the laws of war, such as the right to a hearing if you're not a POW and the right to be treated humanely. What the U.S. is really doing is using the analogy of the laws of war and then picking the things that are most draconian out of them. They are only the swords, not the shields.
MJ: Does the administration's use of different legal justifications complicate the legal counter-battles?
MR: The question that we've come down to in litigating these cases, especially Guantanamo, is not really the question of whether military law or criminal law applies, but simply that everybody should get some kind of hearing before they can be held, without deciding necessarily what has to be proven at that hearing, or deciding which body of law applies -- military or criminal -- because the Constitution and due process should apply. The first thing we decided in arguing cases is that we have to have a right to a hearing. It may differ from case to case, but the main principle is the same. For example, if I'm representing a client from the Taliban, the laws of war are applicable. If I'm representing an alleged terrorist from the Gambia, then I would argue that you can't apply military law, that individual has to be treated as a criminal. In both cases, the courts have affirmed the fundamental premise that the courthouse door is open and detainees have the right to go in and litigate why they're being held. These first two big hurdles aren't that complex. The first is whether the courthouse is open to the detainees and the second is whether they have some rights once they're in the courthouse.
MJ: Have you made much progress in relation to these first hurdles?
MR: Absolutely. With Rasul and Hamdi, the main thing the Supreme Court said was that the court door is open for detainees to come into court and ask the government why they're being held. The problem is that the Supreme Court opened the courthouse door, but it didn't say what would happen once detainees got into the court room—what rights they might have under the Geneva Conventions or U.S. Constitution. That's what we're still litigating. The difference between Judge Richard Leon and Judge Joyce Hens Green is that Leon said that detainees can get into the courtroom, but it's essentially empty when they get in there: no Constitution, no international law or rights, no treaty rights. What Green said that in the courtroom there's a due process, Geneva Conventions and rules against torture that pertain. They're filling in the picture that the Supreme Court left open. There's a footnote in the Supreme Court opinion (footnote 15) that we think states that there are constitutional rights in Guantanamo, but this is still being debated. The other part of the picture is whether those hearings are supposed to take place in Guantanamo or in federal court. The government tried to say that it could hold all its factual hearings at these Combatant Status Review Tribunals (CSRTs) and then that ruling will go to federal court as a piece of paper that says "you're an enemy combatant and that's all you can do." We're saying that detainees have the right to a real factual hearing in federal court.
MJ: How did the president obtain the power to detain these people to begin with?
MR: He didn't do it legally. It's called the AUMF (The Authorization to Use Military Force). This authorization was passed in September 2001. It authorized the president to use force against anybody responsible for 9/11, or related to 9/11. What he did immediately after this passed is expand that definition to be anyone who he considered to be an international terrorist. The expanded definition doesn't say "international terrorist who was involved in 9/11." It's anyone he single-handedly decides is an international terrorist. And this is just a military order, never approved by Congress. He's way beyond what even the broadest view of the authorization to use military force would allow.
One of the government's patterns is that once we start winning the litigation, it comes out that the administration doesn't have enough evidence to hold people, so they release them. In Hamdi, as soon as the Supreme Court forced a hearing, they released him. Now that we're getting into federal court and requiring the government to give reasons for why they're holding people, they're going to have to come up with something. Even if they're using these CSRTs, they still have to litigate those in federal court. Once the government is forced to declare why they are holding a certain detainee, they're going to look silly. They're going to say, "We're holding you because you are an enemy combatant. You were found to be an enemy combatant by the CSRT and the evidence against you is that you have a friend from Bosnia who was a person who we believe is a terrorist." They won't even tell you the name of the friend. So, the administration's reasoning is going to be torn apart in court.
MJ: Do you think the Bush administration realizes that it's, as you say, losing the battle?
MR: I think they still are trying to figure out how they can fight off rights at Guantanamo. I think it's partly about the war on terror to them. But, I think it’s really about trying to assert incredible authoritarian power over human beings that they label as bad. At times, it seems that Guantanamo is a kind of diversion from what the U.S. is doing to so-called "high-value detainees" in terms of "extraordinary rendition." That's something we've just scratched the surface of. No one has really touched the CIA in what it's doing around the world. And the fact is that a lot of the torture memos were probably written to give the CIA cover for some of the worst torture imaginable. But if you look at some of the administration's original claims, we see they’re losing ground. At first they claimed that no court can hear the detainee cases. The Supreme Court overruled this. Now that they lost that, they’ve gone back and said, okay a court can hear the cases, but there's nothing to hear because there's no rights. I think they're fighting still for the maximum amount of power that they can still get from these decisions.
MJ: Is the U.S. judicial system facing pressures from the administration or lawyers?
MR: Yes. The administration is equating ruling in favor of basic legal rights with giving terrorists rights. The wording of the legal briefs that the administration present basically makes judges feel responsible for the release of any terrorists, and therefore, feel responsible for the next potential terrorist attack. The briefs all start off with the planes hitting the buildings and a statement to the effect that the president should have extraordinary power in this situation. They claim that federal judges should not be interfering at all with what's going on, that they shouldn't be second-guessing what they administration is doing. The legal community is considered interference.
MJ: Do you anticipate that these detainee and torture cases will be cleared up by the time the next administration comes in? Or are we dealing with repercussions well into the next administration?
MR: I think we’re dealing with repercussion well into the next administration. Not for everybody, but for a lot of the people. They're building a permanent detention facility in Guantanamo with no standard of proof for the people being kept there. We've got to go to federal court and demand the evidence for these detainments. But the government is going to fight every step of the way, saying they can't reveal any evidence. We're going to be litigating these cases for a very long time. One of the reasons we've beefed up our team at the CCR was because of this. At the same time, I think that an administration that is even halfway decent will repudiate what's happened with regard to inhumane treatment and torture. And any future administration would hopefully do a serious independent investigation into the torture instead of the series of reports we've had thus far that are simply whitewashes.
MJ: Do you have any sense of how this is all going to play out, in legal terms, in the end?
MR: We've already won with, as some have said, the most significant ruling since Brown v. Board. We have the ruling that anyone held in detention by the U.S. who is a citizen or non-citizen, can go into a court whether they're in Guantanamo or held anywhere in the world. So that's a pretty big beginning. The second thing we're probably going to win is constitutional rights for people in Guantanamo. The third is real hearings. Where it's going to end is that there are going to be very few people held in these indefinite detention permanent facilities within the next couple of years, but there will still be litigation around them for years to come.
The torture stuff will end very badly for those who authorized torture. I can't say that's going to happen in three years or ten, but if you look at what's happening to Pinochet with the roundup and torture of people in "Operation Condor" 30 years later, it doesn't bode well for those involved in this. Operation Condor is the same principle as our extraordinary rendition, the same as Guantanamo. We're picking up people all over the world and torturing them, killing some of them. The U.S. is so far off of the moral compass right now of what it used to supposedly stand for in terms of prohibitions on torture, disappearances, military commissions, and indefinite detentions. I think we'll get back to where we were before eventually. But the problem is that once you've done it, it's like a torn fabric, it’s never the same as having it whole—it’s always patched up. It could happen again. And when other countries do it, we're going to have trouble taking a moral stand. It's damaged us for generations.
MJ: Do you think the media is adequately covering the legal issues?
MR: I think they've done a terrible job on the torture stuff. It's open and notorious that the highest government level officials authorized torture in the memos. They should be nailing these guys. You've heard Rumsfeld's name a little bit. But you rarely hear about his aides Cambone and General Boykin, who were instrumental in carrying out Rumsfeld's torture policies. The media's long non-acceptance, and much belated use of the word "torture" has also been an issue. Also, I have seen very little coverage of people who have been released from Guantanamo. Similarly, I don't understand why the media didn't cover the German case we brought. I was willing to give the Times an exclusive and they wouldn't cover it, neither would the Wall Street Journal.
MJ: Why don't you think they wanted to cover the Germany case?
MR: I think it's because we're alleging they committed war crimes and people still think war crimes is only what happened in Nazi Germany, or Rwanda. But, in fact, these high-level officials have committed war crimes. It's like the emperor has no clothes and everybody else in the world knows it, but in the U.S., our Congress refuses to look at it, and some of our press people refuse to as well. There's no doubt, if you read the law, we have committed war crimes. We're calling some of the highest-level officials in the country war criminals and people don't want to hear it, they're afraid of it. They're also afraid of it because they believe that it might hurt the U.S. But something has to be done.
The administration has taken the key architects of a whole series of illegal policies and they've elevated them. They've taken Rumsfeld and given him another 4 years, they gave Gonzales a bigger job. They may give General Ricardo Sanchez a fourth star. Look what they've done. The media is one issue. The Democrats in Congress are another. They might have voted against making Gonzales Attorney General, but they should still be screaming. The guy is the attorney general of the U.S. and he's a war criminal. It's remarkable.
MJ: If all the evidence is there, why aren't we seeing more outrage?
MR: I think people in the U.S. think these detainees are dead guilty and the heck with them if they get tortured. I think some people think this is going to make us a little safer to have people abused and kept like this. There were reporters who I used to talk to early on in the history of the Guantanamo detainee camp who told me not to worry, that they had talked with their sources and everybody said it's hunky-dory in Guantanamo. They really believed that nothing really bad was happening. There's a problem with people believing what the government says. In the first days of Guantanamo, even I thought that Rumsfeld might be telling the truth, that maybe they really were getting the people at Guantanamo who were involved in 9/11. But it's just not the case.
MJ: Do you have any suggestions for our readers who want to get involved?
MR: There's a variety of actions that we have to take. We need to contact our local representatives and insist on an independent investigation or special prosecutor to look at the widespread use of torture. People can go to local editorial boards, visit their House of Representatives, or find out who is justifying this kind of torture and demonstrate against them—for instance, people like John Yoo at Berkeley who should, by no stretch of the imagination, be teaching other people how to be lawyers. There is also currently a play being put on across the country regarding prisoners in Guantanamo. I would encourage people to go to the play. It's called Guantanamo: Honor Bound to Defend Freedom. We are also trying to get people to schedule readings of the play in their hometowns. And there are plenty of other opportunities to get involved through our website, www.ccr-ny.org.