Michael Ratner’s Army: The Fight Against Guantanamo
by David Cole
NYR Daily, The New York Review of Books, May 15, 2016
http://www.nybooks.com/daily/2016/05/15/michael-ratner-army-fight-against-guantanamo/
As Barack Obama looks to the end of his tenure as president and
commander-in-chief, the prison camp he inherited at Guantanamo Bay remains
one of his most frustrating challenges. He promised to close it on his
second day in office. He has transferred out two-thirds of the prisoners
left there when he became president. And in February he issued a
comprehensive plan to complete the closure. Yet the camp remains open, and
Congress remains adamant about keeping it that way.
Still, Guantanamo is, thankfully, a shadow of its former self. President
George W. Bush brought 779 men to the camp, held them in secret, denied them
hearings or lawyers, and had them tortured. Today, there are only eighty
prisoners left, torture has long ceased, everyone who wants a lawyer has
one, and many of those still there have been cleared for release once a
country can be found to take them. Obama deserves credit for some of the
improvement, but much of it had occurred even before he assumed office. Bush
himself released more than five hundred detainees, for example. The real
credit lies with neither president, but with the hundreds of lawyers and
thousands of activists who have stepped forward to advocate for Guantanamo
inmates. And many of these lawyers and activists in turn owe much of their
inspiration to one man: the human rights attorney Michael Ratner.
Ratner, who died on May 11 at seventy-two and led the Center for
Constitutional Rights (CCR) for much of his career, will be most remembered
for filing Rasul v. Bush, the first lawsuit challenging President Bush’s
wartime detentions. The suit, filed in 2002, was dismissed out of hand by
the trial court and the court of appeals, as most observers, and for that
matter, Ratner himself, expected. Yet to everyone’s surprise, in 2004 the
Supreme Court ruled for the detainees. It was the first time in history that
the Court had ruled against the president on behalf of alleged enemy
fighters in wartime. And it was the first of four Supreme Court decisions
between 2004 and 2008 that rejected President Bush’s assertion of unchecked
executive power in the "war on terror." By rejecting Bush’s attempt to make
Guantanamo a "law-free zone," the case set a pathway to freedom for hundreds
of wrongly imprisoned men, and reunited countless divided families.
But equally important, Rasul and other seemingly hopeless cases that Ratner
took up during his forty-five-year career nurtured an army of like-minded
activists and lawyers, whose own lives and careers were forever changed by
their work alongside him. Ratner’s legacy lies not just in the precedents he
set, or the men he helped free, but in the countless young men and women who
were transformed by working with him into forceful advocates for human
rights. If and when Guantanamo is closed, it will be because of these men
and women.
In fact, Rasul was Ratner’s second unlikely Guantanamo victory. The first
came a decade earlier, when President Bill Clinton used the naval base there
to warehouse HIV-positive Haitian refugees who the administration was
unwilling to bring ashore. Ratner took up the refugees’ case with a Yale Law
School clinic he was then co-teaching with Harold Koh. In that case, just as
a decade later, the US argued that the Constitution did not apply because
the detainees were foreigners held outside US borders. But in the end, the
Clinton administration was compelled to bring the Haitians to the mainland.
Both cases were Ratner’s idea (although he would not hesitate to credit his
principal initial colleagues, Koh on the Haitian case, and Joe Margulies,
Clive Stafford Smith, and Steven Watt on Rasul). But in both cases he
needed, and recruited, hundreds to help him achieve the result. In the
process, these cases did more than change law; they changed lawyers. Many of
those who worked with Ratner continue to fight to this day for the remaining
Guantanamo prisoners, as well as for many other causes.
Over one hundred Yale law students worked with Ratner and Koh on the Haitian
litigation. A striking number of them have gone on, shaped by that
experience, to pursue social justice. Sarah Cleveland now teaches human
rights at Columbia Law School, and serves as the US representative to the UN
Human Rights Committee. As she told me, "Michael showed all of us vividly
how law can and must be used to constrain power--regardless of whether you
succeed in a particular case."
Another Haitian case alumnus, Mike Wishnie, now runs a clinic at Yale Law
School that represents immigrants, low-wage workers, and disabled veterans,
and inspires still more students to take up the cause. He recalled, "I came
to law school skeptical that the slow, resource-intensive, blunt force of
litigation could ever be useful in addressing complex social problems like
poverty or racism. Michael showed me that one could be a lawyer for social
justice in the courtroom and in the street and in the public debate, and
that one could do so with craft and integrity and joy, even in the hardest
cases."
Countless other Yale graduates followed Michael’s lead. Lisa Daugaard
directs the Public Defender Assocation in Seattle. Margo Schlanger founded
and heads the Civil Rights Litigation Clearinghouse at University of
Michigan Law School. Paul Sonn is General Counsel of the National Employment
Law Project. Catherine Powell teaches human rights at Fordham Law School.
Cecillia Wang heads the ACLU Immigrants’ Rights Project. Tory Clawson has
spent her career with Save The Children, much of it living and working in
Asia. Graham Boyd leads the ACLU’s drug legalization project. Van Jones
founded Dream Corps, a nonprofit devoted to environmental and social
justice. Michelle Anderson is the dean of the CUNY-Queens Law School, the
nation’s only law school committed to training public interest lawyers. And
the list goes on.
Much the same thing happened a decade later. After Ratner and his colleagues
won Rasul, more than five hundred private attorneys from across the country
volunteered to represent them. Most had little or no experience in the
obscure law of habeas corpus; none had ever represented an "enemy
combatant." Under Ratner’s leadership, CCR coordinated their efforts,
trained them, and managed a listserve on which attorneys shared strategy and
research.
In 2006, Wells Dixon was a young lawyer at the New York corporate law firm
Kramer Levin doing corporate securities and white collar criminal defense
when his firm loaned him to CCR for six months to help out on the Guantanamo
litigation. He never returned, and is now a senior staff attorney at CCR,
still working on some of the hardest and longest-running Guantanamo cases.
Steven Watt, a young Scottish lawyer who had never practiced in the US,
showed up at CCR in November 2001, just days after President Bush had issued
an executive order establishing military tribunals to try terrorists. He
remembers Ratner predicting that Bush would bring the men he captured to
Guantanamo. They started planning a lawsuit then, before the first prisoners
even arrived. Steven worked on the Guantanamo cases at CCR for several
years, much of it without pay. Today, he is a human rights lawyer at the
ACLU, where he is suing the psychologists who devised the CIA’s torture
tactics for interrogation.
Seema Ahmad worked as a liaison with Guantanamo clients and their families.
She says she learned from Ratner "that one of the most spiritually
fulfilling experiences is to stand with someone that has no one and to see
them as human and to learn their story." She is a public defender today.
Joe Margulies had been a capital punishment and civil rights lawyer in
Minneapolis, with no experience in international law. But Ratner asked him
to serve as co-counsel in Rasul. To this day, he represents Abu Zubaydah, a
Saudi man mistakenly thought to be a high-level Al Qaeda official, and
repeatedly subjected to waterboarding and other torture because he couldn’t
tell the CIA what he didn’t know. In 2014, Abu Zubaydah was awarded 100,000
euros in damages by the European Court of Human Rights against Poland for
its part in allowing him to be held in a CIA secret prison there. But he
remains imprisoned at Guantanamo.
David Remes was a partner at the prestigious Washington firm of Covington
and Burling when he volunteered in 2004. Four years later, he resigned from
the firm to work full-time on freeing the detainees. He is still at it.
Tom Sullivan was a seventy-two-year-old former US Attorney and partner at
the corporate law firm of Jenner and Block when he read about Rasul in the
paper and saw that CCR was looking for volunteers. He picked up the phone
and offered his firm’s services. For more than a decade, Sullivan and
several other lawyers at the firm have represented about twenty men at
Guantanamo. All but one client have been released. The firm has devoted
thousands of hours to the work, all without compensation.
Sabin Willett was a partner specializing in bankruptcy when he volunteered
in 2005. For six years, he and a team of lawyers at his firm, Morgan Lewis,
represented twenty-three Uighur detainees at Guantanamo, until the final one
was released in 2011. He spent as many as one thousand hours a year on the
work. As he told me, "it left me firmly believing that one can--and should,
when the country goes wrong--get into the arena oneself. And that even I can
do this--which means anyone can."
The volunteers didn’t always have large corporate firms to support them.
Ellen Lubell and Doris Tennant run a two-person office outside Boston,
specializing in family law, nonprofit advising, and copyright. They had
never done anything remotely like habeas corpus litigation. But they spent
four and a half years representing an Algerian man, for which they traveled
to Guantanamo six or seven times. He is now back in Algeria. Dicky Grigg, a
personal injury lawyer in Austin, Texas, who said his practice focuses
principally on "which car entered the intersection first," also volunteered.
"It was the most meaningful thing I’ve done in my legal career," he says.
Lawyers tend to measure success in how their cases affect their clients
first, and the state of the law second. Some, of course, also look to their
own bottom line. But when one fights for social justice, as Michael Ratner
did, these measures are inadequate. Ratner was a one-man force multiplier.
By involving so many in his work, he inspired others to follow in his
footsteps. I know. He took me under his wing when I was just a law student,
pretty sure that I did not want to practice law at all. He gave me lead
roles in bold and ambitious cases, and guided me with wise and supportive
advice. I ended up working with him for my first formative decade as a
lawyer.
Ratner was deeply disappointed that he did not live to see Guantanamo
closed. But it says much about his legacy that so many of the nearly eight
hundred prisoners once housed there have been released, and that those
remaining have forceful and dedicated advocates working on their behalf. It
is now up to Obama, and Congress, to complete the task.
