• Latest News
  • Pitch a Story
  • Work with a Journalist
  • Join the Blog Squad
  • Afghanistan
  • Africa
  • Asia
  • Baltimore
  • Canada
  • Egypt
  • Europe
  • Latin America
  • Middle East
  • Russia
  • Economy
  • Environment
  • Health Care
  • Military
  • Occupy
  • Organize This
  • Reality Asserts Itself
  • US Politics
  • Obama Signs NDAA Bill Allowing Indefinite Detention; Obama Orders Assassinations with No Oversight

    Michael Ratner: Obama continues model of Presidential fiat, Congressional fiat, no due process, no trials, and indefinite detention. -   January 6, 2013
    Members don't see ads. If you are a member, and you're seeing this appeal, click here


      Share to Twitter
    Share to Facebook

    I support The Real News Network because it is news - David Pear
    Log in and tell us why you support TRNN


    Michael Ratner is President Emeritus of the Center for Constitutional Rights (CCR) in New York and Chair of the European Center for Constitutional and Human Rights in Berlin. He is currently a legal adviser to Wikileaks and Julian Assange. He and CCR brought the first case challenging the Guantanamo detentions and continue in their efforts to close Guantanamo. He taught at Yale Law School, and Columbia Law School, and was President of the National Lawyers Guild. His current books include "Hell No: Your Right to Dissent in the Twenty-First Century America," and “ Who Killed Che? How the CIA Got Away With Murder.” NOTE: Mr. Ratner speaks on his own behalf and not for any organization with which he is affiliated.


    Obama Signs NDAA Bill Allowing Indefinite Detention; Obama Orders Assassinations with No OversightPAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I'm Paul Jay in Baltimore. And welcome to this week's edition of The Ratner Report with Michael Ratner, who now joins us from New York City.

    Michael is the president emeritus of the Center for Constitutional Rights in New York. He's chair of the European Center for Constitutional and Human Rights in Berlin. And he's a board member of The Real News.

    Thanks for joining us again, Michael.

    MICHAEL RATNER, PRESIDENT EMERITUS, CENTER FOR CONSTITUTIONAL RIGHTS: It's always good to be with you. And happy new year to you and all your viewers.

    JAY: Thank you. And what are you following now?

    RATNER: You know, it's—unfortunately, it's more of the same, which is the war-on-terror excesses, first of the Bush administration, and now the Obama administration. We're going into, really, the middle of the 11th year of what I consider to be a lawless way of carrying out the so-called war on terror. The model that has been used is essentially presidential fiat, congressional fiat, no due process, no trials, indefinite detention.

    And just this week the president signed—and it's into law—the National Defense Authorization Act, which comes up every year. It's a 620-page bill. It funds all our military adventures all over the world. But for my purposes, on the so-called war on terror what it does is continue what I call the Bush–Obama policies.

    The first of those policies is indefinite detention, that you can pick up people anywhere in the world—and what's interesting: including American citizens—and hold them indefinitely without trial, and even hold them offshore. We expected this last Congress to try and put in legislation that would at least prohibit the holding of U.S. citizens. They didn't, so it's still authorized by the law. And, of course, that's the lawsuit that Chris Hedges and Daniel Ellsberg had gone to court to try and declare that section of the old law, now of the new law, unconstitutional.

    So you have an NDAA that first allows indefinite detention of anyone in the world, including U.S. citizens. Secondly, it really destroys any chance of closing Guantanamo.

    JAY: Before you get into that, Michael, wasn't there some amendment that came out of the Senate that ensures or at least is supposed to ensure habeas rights for U.S. citizens?

    RATNER: Well, they have a habeas right, but they can still be held indefinitely in detention.

    JAY: So explain what that means, a habeas right.

    RATNER: Okay. Everyone can now, because of the cases we won at the Center over the last ten years, has a right to go to court and say to the court, which will say to the jailor, the United States, are you holding me legally. The problem with it is is legally is now defined by the NDAA as holding someone in indefinite detention for their, quote, associational interests, or association with al-Qaeda or related forces. And so all that the government has to come into court and prove is that somehow this person has some relationship to al-Qaeda or whatever related forces means, which could be almost anything. And that's the way it's been used. So the U.S. picks up people, whether it's in Afghanistan or Pakistan, or Yemen,—

    JAY: Or Pittsburgh.

    RATNER: —Pittsburgh, or Somalia, or anywhere, or England, or anywhere, and says, well, that person's associated with al-Qaeda or associated forces. And then you have a right, yes, to go to court and challenge that.

    But the court has been completely unwilling to hear those challenges. The lowest court has heard them, and in some cases even said, well, the government's not holding with a good reason; it goes to the court of appeals, and they have never actually let anyone out of Guantanamo or any other type of this indefinite detention.

    My problem, of course, is not that they give habeas rights. Sure, that's good. But the problem is they use a indefinite detention model and not a law enforcement model. My view is no one should be held in indefinite detention. Every human being who's picked up anywhere in the world should be charged with a crime if they're going to be kept, and tried for the crime. Instead, you have these masses of people being held without being charged. And if we look at Guantanamo, it's the perfect example.

    And that gets to the second part of the NDAA legislation. There's 166 people left in Guantanamo. Eighty-six of those people have been cleared for release. That means they shouldn't be there at all. The rest of them—whatever, 80 or so—have not been charged, with exceptions of a few, such as the so-called, you know, people who were allegedly involved in the conspiracy of the World Trade Center, which is a half a dozen people or so. So most of those people have never been charged. And, in fact, more than half have been cleared for release.

    So what does the NDAA do to those people? It says two things, which it said consistently year after year, that the president can't transfer anybody to the United States, even those cleared for release. So that means: how do you get those people out of Guantanamo? And secondly, it puts very heavy restrictions on transferring any of those people to foreign countries. They have to notify the Senate, they have to approve it in certain ways. And, in fact, because of those restrictions, no one's been transferred to a foreign country, or to the United States, obviously, in the last two years.

    Now, so that's what you have. You have heavy restrictions. So that means you're going to have trouble closing Guantanamo altogether. Now, Obama made all kinds of noises last year, and he made all kinds of noises this year, that he was going to veto the NDAA because of what he considers these restrictions on his presidential power to, one, transfer people out of Guantanamo to the United States, or transfer them to foreign countries. But last year he didn't veto it, and this year he didn't veto it. So what he does is he does a bunch of saber-rattling. But what he did was do a signing statement.

    Now, signing statements, I want to explain, have no legal efficacy. In the United States, you either have to approve legislation as the president or veto it. Obama, by approving it, basically says this is the law. He then signs something that says, well, I don't like this law, I don't think it's constitutional, I don't think this, I don't think that, but that it has no legal efficacy. The law is the law, and he's not about to necessarily disobey the law—he didn't last year, and he didn't this year.

    Now, what's interesting about Obama's signing statements is two things. One, he criticized them when Bush used them, saying, Bush shouldn't be doing these signing statements; he should either veto the law or approve the law, but not say, I approve it, but—you can't do that. And secondly, last year when he made a signing statement on the NDAA, he said, I will challenge this law as unconstitutional in these respects, etc., etc. This time, because it's past the election, he didn't even say that. And so we now have an NDAA that ostensibly allows the indefinite detention of American citizens, makes it impossible to close Guantanamo, and a president who is unwilling to challenge Congress about the law.

    JAY: And what's the status of that lawsuit that Chris Hedges and his colleagues launched?

    RATNER: Well, Judge Forrest, who is a very good judge in the District of Columbia, actually ruled in favor of Hedges and Ellsberg that the law was unconstitutional because Ellsberg, Hedges, and others who challenge the law could actually be held in indefinite detention for the words that they spoke or what they wrote. And the government refused to say initially that they couldn't be held like that. And so Judge Forrest, who is the judge, said, well, I'm ruling it's unconstitutional.

    The government then, in the most aggressive way they could, Obama appealed that to the circuit court. The circuit court stayed the decision, which means they said, we're not going to hold this unconstitutional; we're going to stay it until we hear the entire argument again. So right now the NDAA is still good law, because the circuit court went against the district court, the lower court, and basically said, we're going to allow the law to continue. So it's still being heavily, heavily litigated.

    Now, it seems to me that two things are apparent to me. One is, of course, I don't think it's good to hold anyone in indefinite detention, citizens or not. Of course, Hedges attacked the most pernicious aspect and the most constitutionally protected aspect, which is holding an American citizen. And secondly, we're still left with Guantanamo. Now, it brings me to—so we have an NDAA out there.

    Now, it brings me to a second issue that I want to get to in this short piece, which is Obama's drone policy. Again, it comes up in the context of the murder of, killing of American citizens Anwar al-Aulaqi, his son, Rahman al-Aulaqi, and another American citizen, all in Yemen. The Center for Constitutional Rights challenged those killings initially. We lost. They were killed by drones after our lawsuit.

    We now have another challenge, challenging them in terms of trying to get damages for them. But an extraordinary decision was written this week by a judge about targeted assassinations by Obama and his administration. It was a case in which the ACLU and The New York Times went to court to try and get the legal basis under which Obama said he could designate people for death, American citizens and otherwise. And the judge said that they weren't entitled, in the end, to the document that was written by the Department of Justice laying out the legal reasoning about why you could kill American citizens or others utterly outside a war zone, whether in Yemen or in Somalia or in the United Kingdom or here in the United States. The judge said—because it was classified, while the judge didn't like giving the decision she did, she'd said, I can't do anything about it, my hands are tied, I'm in a catch-22. And what she said about it was extraordinary. She said, look it, when we had torture in the United States, it was critical to get out the memos regarding the legal reasoning about why the U.S. could torture people, so that it could be fully, fully debated. Here my hands are tied.

    And what we should have is, like torture, we should get out the legal memos about why the president should be able to assassinate people outside a war zone so we can have a serious debate about it.

    JAY: Well, does the president have to show these memos to anybody?

    RATNER: Not really, no.

    JAY: There's no congressional oversight? Not given the history of whatever oversight there's been would mean that much, but is there? I mean, I don't understand. The—then I don't understand. The president could create any memo he wants and—?

    RATNER: Well, the Justice Department creates the memo, they give it to the president. He could technically withhold it from Congress. I don't know whether Congress has asked him for it or whether he has withheld it, or whether Congress is entitled to find out much about the policy, because while the Congress is entitled to find out about, particularly, CIA covert operations, whether this falls within that is hard to say. And secondly, this isn't only done by the CIA, but targeted assassination is done by Joint Special Operation Command, or JSOC, the military. Congress has no ability to really—or no law that requires the president to report to Congress on the murders or assassinations by JSOC.

    So you have this policy of the president on his own deciding who can be murdered or assassinated, even if they're American citizens. And what was incredible about the judges' decision, the judge said or implied that the president could actually be criminally prosecuted for killing of a U.S. citizen overseas and said the president is not exempt from the law that prohibits people or citizens in the United States or people anywhere in the world from killing U.S. citizens overseas. So she made an implication that it may be that the president could actually be prosecuted for these targeted assassinations around the world. So while she denied, ultimately, the memo, it's just this opinion, which is some 75 pages long, just drips with anger and really, I think, what you would have to say is deep unease at the president saying on his own, without providing the American people with a legal basis, for assassinating American citizens anywhere in the world.

    Taken together, what you have here, you have the NDAA law which allows the indefinite detention of American citizens, you have the al-Aluaqi decisions, and this recent one which allows the targeted assassination of American citizens, both detention and killing, at the behest of one man. And what the judge says: this is supposed to be—supposed to be a democracy, a constitutional democracy based on the rule of law and not on the rule of men. And I guess she's questioning whether that's what we have any longer.

    JAY: Thanks for joining us, Michael.

    RATNER: Thanks for having me, Paul.

    JAY: And thank you for joining us on The Real News Network.


    DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.


    Our automatic spam filter blocks comments with multiple links and multiple users using the same IP address. Please make thoughtful comments with minimal links using only one user name. If you think your comment has been mistakenly removed please email us at


    Latest Stories

    The Modern History of Venezuela and Popular Democracy - Edgardo Lander on RAI (9/9)
    An Asia "Pivot" Should Mean Cooperating with China to Solve the Global Environmental Crisis
    Assessing the U.S. Environmental Movement
    Intimidation and Political Interference Goes Unpunished in UAW Case
    Exclusive Investigation Uncovers How BP Uses Bribes To Do Business
    The Modern History of Venezuela, The Protests and Democracy - Edgardo Lander on RAI (8/9)
    Greek Politics 4 Years After The Financial Crisis
    CBO Report Confirms U.S. Deficit Back to Normal Level
    Israel Uses Refugees as "Currency" in Arms Trade with Africa
    Who Will Pay for Climate Change Disaster?
    Canada Shifts to Right Under Harper, Mimicking the United States
    The Savings and Loan Crisis Demonstrates the Importance of Glass-Steagall
    South African Platinum Miner's Struggle Challenges ANC Leadership
    TRNN Original Report: Manning Determined to Fight Back After Army Upholds 35- Year Sentence
    Hundredth Anniversary of the Ludlow Massacre
    The Bundy Ranch Standoff Demonstrates Values Shared by Corporations and the Far Right
    The Resegregation of American Schools
    The Modern History of Venezuela, Why Still So Much Crime? - Edgardo Lander on Reality Asserts Itself (7/9)
    What Role Has Russia Played in Eastern Ukraine?
    Can Johns Hopkins Afford to Pay A Living Wage? (2/2)
    University Sit-In Targets World's Largest Private Coal Company
    The Modern History of Venezuela and the Need for a Post-Oil Economy - Edgardo Lander on RAI (6/9)
    Can Johns Hopkins Afford to Pay A Living Wage? (1/2)
    One Percent of Environmentalists Killings Lead to Convictions
    Investigation Finds Former Ukraine President Not Responsible For Sniper Attack on Protestors
    The Modern History of Venezuela from 1973 to the Caracazo Massacre - Edgardo Lander on Reality Asserts Itself (3/9)
    Ukraine Transitional Gov't Moves Militarily To Reclaim Seized Buildings
    IPCC Report Flawed By Narrow Focus on Carbon Emissions
    The Modern History of Venezuela: The Bolivarian Revolution - Edgardo Lander on Reality Asserts Itself (5/9)
    Obama Signs Directives to Reduce the Gender Wage Gap
    Eastern Ukraine Lacks Political Representation in Kiev
    Demystifying the Role of Mitigation in the Most Recent IPCC Report
    Hypersurveillance State Won't Prevent Another Boston Marathon Bombing
    The Modern History of Venezuela from 1973 to the Caracazo Massacre - Edgardo Lander on Reality Asserts Itself (3/9)
    Univ. of Maine Faculty Reinstated After Students Protest Against Cuts
    The Modern History of Venezuela from 1908 to 1973 - Edgardo Lander on Reality Asserts Itself (2/9)
    IMF Will Address Global Inequality, Says Managing Director Christine Lagarde
    Raising Big Banks' Leverage Ratio Good, But Not Nearly Enough
    TRNN Replay: Austerity Road to 19th Century
    Has Palestinian Maneuvering Revived Peace Talks?
    Late Jackson Mayor Lumumba's Son Wins Primary to Replace His Father, Runoff Election Ahead
    Quebecers Reject PQ and Elect a Liberal Government Representing Big Business
    TRNN Debate: Decriminalization vs. Legalization
    The Beginning of the Chavez Era - Edgardo Lander on Reality Asserts Itself (4/9)
    "Off With His Head": Court Upholds Obama's Power to Kill
    Workers at Nation's Top Hospital Strike For Fair Wages
    From Exile to Radicalization in Venezuela - Edgardo Lander on Reality Asserts Itself (1/9)
    Rwanda 20 Years Later: Genocide, Western Plunder of Congo, and President Kagame
    Ukrainian Protesters in the East Demand More Autonomy From Kiev Government
    Hunger Strikers Demand President Obama Halt His Record 2 Million Deportations
    Indian Parliamentary Elections - A Primer With Vijay Prashad
    West Looks to Carve Up Ukraine & Privatize Industries Held by Kleptocrats
    Where Are Israeli-Palestinian Peace Negotiations Headed?
    The Multiple Kingdoms of Saudi Arabia (5/5)
    Do the Afghan Presidential Elections Signify Progress?
    Republican Presidential Hopefuls Pay Homage to Billionaire Casino Tycoon Sheldon Adelson
    Will Extremist Lieberman Become Israel's Next Prime Minister?
    Why do the Saudis Want the US to Attack Iran? (4/5)
    Immigrant Advocates and Families Tell President Obama 'Not One More'
    Elections, Pipelines, and Protests - The Canada Panel
    Chris Hedges on "Israel's War on American Universities"
    Baltimore Residents Decry Lack of Affordable Housing
    Yellen Talks the Talk But Will She Walk the Walk?
    Hopkins Hospital Workers Speak Out against "Poverty Wages"
    Will Venezuela's New Floating Exchange Rate Curb Inflation?
    The European Central Bank's War on Wages is Pushing Europe's Economy to the Brink
    Supreme Court Decision Opens Floodgates for More Campaign Cash
    Charles Keating, the Financier Behind the Savings and Loan Scandal, Dies at 90
    Saudi Arabia and the al-Qaeda Monster (3/5)
    Maryland Residents Voice Opposition to Natural Gas Fracking Export Facility
    Supreme Court Ruling Gives Wealthy Individuals More Influence Over Elections
    What are the Saudis Afraid Of? - Madawi Al-Rasheed (2/5)
    Baltimore's MICA Adjunct Professors Set to Vote on Unionization
    Boycott of Israel Moving to Next Level?
    Hypocrisy Dressed Up as "Realism" Justifies American Alliance with Saudi Dictatorship
    Immigration Reform in the Shadows of Cesar Chavez's Legacy
    Leaked Senate Report Shows Use of Torture As "Ineffective"
    UN Report Says Climate Change Will Threaten Food Production Worldwide
    The Hypocrisy of US Calling for Enforcement of International Law
    How the Ecuadorian Economy Grew in a Global Recession
    'Shadows of Liberty' Trailer
    Kristina Borjesson on Why CBS Shut Down Her investigation into Flight 800 (2/8)
    Glen Ford on Racism in the American Media (3/8)
    Paul Jay on What Drives Corporate Media and What Drive The Real News (4/8)
    Creating a New Media Paradigm After Citizens United (5/8)
    Should The Left Engage with the Mainstream Media? (6/8)
    What Is the Financial Backing For The Real News? (7/8)
    Standing up to Character Assassination (8/8)
    Oligarchs, Fascists and the People's Protest in Ukraine
    TRNN Debate: Is Obamacare In the Interest of Workers?
    Too-Big-To-Fail Advantage Remains Intact For Big Banks
    Obama and the Saudi Agenda
    TRNN Replay: Investigating the Saudi Government's 9/11 Connection and the Path to Disilliusionment - Sen. Graham on Reality Asserts Itself pt 1
    The Iraq War's Real Legacy
    Petitions with 100,000+ Signatures Call for Snowden's Passport to be Reinstated
    We Need to Harness People Power - Andy Shallal on Reality Asserts Itself (4/4)
    BC Pipeline Fight and Quebec Elections - The Canada Panel
    Jonathan Schell - 1943-2014: Board Member of TRNN on Why We Need The Real News
    Teachers on Strike from the UK to Argentina
    Connecticut Poised to Become First State with $10.10 Minimum Wage
    Oil Spill Threatens Wildlife and Local Economy
    DC School Test Scores Up, But Poor Black Kids Are Doing Worse - Andy Shallal on RAI (3/4)
    Obama's Proposal To End NSA Bulk Data Collection Won't Protect Privacy
    How Google, Apple & The Biggest Tech Companies Colluded to Fix Workers' Wages
    An American Should be One that Questions Their Government - Andy Shallal on RAI (2/4)
    What's Driving Putin & Obama's Posturing on Ukraine?
    Hundreds of Students & Faculty Occupy College Campus to Fight Cuts to Public Higher Ed
    Due Process 'Impossible' In Harsh Death Sentencing Of Over 500 Muslim Brotherhood Members
    Has Anglo-American Capitalism Run Out of Steam?
    Being the "Other" in America - Andy Shallal on Reality Asserts Itself (1/4)
    TRNN Debate: Should Baltimore 'Ban The Box'?
    How Fallujah Became the Iraqi Government's New Battleground
    Why I Decided to Blow the Whistle on the NSA
    NASA Climate Predictions Show Serious Threat To Humanity
    Professor Who Teaches Israel-Palestine Conflict Accuses College of Violating His Academic Freedom
    CIA and NSA Wrongdoing Requires Independent Investigation, Says Former Church Committee Staff
    Are Tuition Breaks Enough To Combat High Student Debt And Low Graduation Rates?
    Industries Across the U.S. Are Stealing Wages From Their Lowest Paid Workers
    Who In Ukraine Will Benefit From An IMF Bailout?
    NSA Recording All International Calls From U.S.
    Israel "Making Lives Miserable" for Africans, Hoping They 'Self-Deport' (2/2)
    BP Gets Green Light to Drill in Gulf, But Has Safety Improved?
    Residents Still Not Drinking Tap Water Two Months After West Virginia Spill (1/2)
    Libya's Descent Into Turmoil Three Years After NATO Intervention
    From Pipelines to Peladeau - Canadian Report
    Israel "Making Lives Miserable" for Africans, Hoping They 'Self-Deport' (1/2)
    Congressional Progressive Caucus Budget Strikes Back Against Austerity
    Libya Three Years Later - Chaos and Partition
    Why Was Gaddafi Overthrown?
    Should Ukraine and West Accept De Facto Crimea Joining Russia? (2/2)
    Tony Benn Saw Socialism as the Culmination of Democratization
    Why Didn't Bush/Cheney Attack Iran and Can Obama Make and Sell a Deal? - Gareth Porter on Reality Asserts Itself (3/3)
    After Late Mayor Lumumba is Laid to Rest, What's Next for Jackson, Mississippi? (2/2)
    Crimea Referendum: Self Determination or Big Power Manipulation? (1/2)
    Sen. Graham: President Must Side with Openness About CIA and 9/11
    Manufacturing a Narrative for War - Gareth Porter on Reality Asserts Itself (2/3)
    Protesters Hit the Streets of Brooklyn to Demand $15 Minimum Wage
    Hammer: 'Moral Bankruptcy' Behind Massive GM Recall
    White House Withholds Thousands of Documents from Senate CIA Probe
    I Grew Up Believing in Time Magazine's Version of America - Gareth Porter on RAI (1/3)
    Western European Banks Vulnerable to Ukrainian Sovereign Debt Crisis
    TRNN Debate: What's Driving Inflation in Venezuela? (2/2)
    CIA vs. Senate: Who Is Obama Protecting?
    Will Tipped Workers Get Excluded Again From Minimum Wage Hike?
    TRNN Debate: What's Driving Inflation in Venezuela? (1/2)
    After Late Mayor Lumumba is Laid to Rest, What's Next for Jackson, Mississippi?(1/2)
    TRNN Replay: A Look at Who's Poised to Become No.2 at the Fed
    How Right-Wing Nationalism Rose to Influence in Ukraine (2/2)
    Netanyahu Attacks Boycott As Campaign Enters New Phase
    Moving Towards a Police State - Michael Ratner on Reality Asserts Itself (7/7)
    Fighting Reagan's Secret, Illegal Wars - Michael Ratner on Reality Asserts Itself (6/7)
    Puerto Rican Independence Movement and Cuba Further Radicalized Me - Michael Ratner on RAI (5/7)
    The Butcher of Attica - Michael Ratner on Reality Asserts Itself (4/7)
    MLK and a Radicalizing Moment in American History - Michael Ratner on Reality Asserts Itself (3/7), Real News Network, Real News, Real News For Real People, IWT are trademarks and service marks of IWT.TV inc. "The Real News" is the flagship show of IWT and Real News Network.

    All original content on this site is copyright of The Real News Network.  Click here for more

    Problems with this site? Please let us know

    Linux VPS Hosting by Star Dot Hosting