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One year later, Michael Ratner assesses President Obama’s human rights record

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in New York City. It’s one year of the Obama administration. Everyone’s checking the one-year report card. And now to look at his record on human rights is Michael Ratner. He’s the president of the Center for Constitutional Rights, and he’s a board member of The Real News Network. Thanks for joining us, Michael.


JAY: So give us a one-year report card on President Obama.

RATNER: Well, on the areas that we really had the most hope and concern, for which are the national security areas that we’ve been working on—we represented Guantanamo detainees, represent people picked up around the world for various alleged crimes, represent, really, detainees that have been rendered from one country to another. Those, we hoped that Obama would really make a clean break with the Bush administration. Unfortunately, we’re quite disappointed, and really I would say I’m angry that he hasn’t really done more to push aside what is now becoming a continuing legacy of the Bush administration. And we can just almost tick them off. I mean, you have Guantanamo sitting there. He had promised to close it in a year. We were all very excited about that closing in a year. And here it is, a year later, and we still have 242 people left at Guantanamo with less and less chances of actually getting that prison closed within the foreseeable future. I mean, I don’t know when it’s going to happen. I mean, they’re thinking about buying a prison in Illinois. They’ve stopped anybody being released to Saudi Arabia or Yemen. So we have no sense of when people are going to be really taking out of there.

JAY: Well, deal a bit with the Yemen issue, because there’s been this accusation that many of the Yemeni—. [01:49] Yemeni? Do I say Yemeni? Yemen? I can say Yemeni? I have an Egyptian here I can ask. [01:56] Let’s start with the Yemeni issue. Many of the Yemeni prisoners that were left [sic] out of Guantanamo we are told went back to Yemen and then joined again with al-Qaeda-type forces and are fighting Americans. What’s the truth [inaudible]?

RATNER: Right. I mean, there’s a lot of hype about that. As far as we know, the people released from Guantanamo, particularly those released either after a process or after a judicial hearing, none of those have actually fought against the United States. The one person who was alleged to have joined some kind of a group fighting the United States or al-Qaeda was someone who was released when there was no process, under the Bush administration, no less. The fact is, currently there’s 90 people from Yemen in Guantanamo. It’s the greatest bulk of people. A number of those people have been cleared for release. If they’re cleared for release, they should be released. I mean, the idea that people are spending an extra day in prison when they shouldn’t be there is amazing to me. And if the administration feels they can’t be sent back to Yemen, then they have to find another country to send them to. These are people who should never have been picked up in the first place, should not be in Guantanamo, and have been there too long. What you’re seeing is a lot of hype because of the incident on the Northwestern Air flight, where someone who had nothing to do with Guantanamo that supposedly was trying to—allegedly was trying to light a bomb on there, and that he had been talking to or arranged with someone from Yemen who had a connection with someone from [inaudible]

JAY: Now, the Obama administration will say they’ve announced they’re going to try Khalid Sheikh Mohammed in New York City. So they’re bringing someone to be part of the American judicial process. There’s some talk of some other trials that might take place in Washington, DC, now. There’s been the talk about the prison in Illinois. But start with the trial in New York.

RATNER: I think that the trials are important to start with. We’ve insisted at the Center, where I work, from the beginning that you have only, really, two things you can do with people that are picked up for alleged crimes: you either charge them and try them and convict them, if a jury finds that they should be convicted, and they go to jail; or you release them. There’s no sort of middle ground of preventive detention. What we’ve had with Guantanamo is a huge preventive detention scheme, and Obama is continuing that. At the same time, he has said he would try some people. He said he would try some people like Khalid Sheikh Mohammed in New York at a regular federal trial. We support regular federal trials. I support regular federal trials. They have due process that has been used for 200 years in this country. That’s the way people ought to be tried.

JAY: What do you make of one critique of this, which is that there is just impossible that the US government can allow—what do they call him? KSM—to go free, which means the kind of evidence that was acquired through torture, under a normal American trial, may well would have been judged to have tainted all possible evidence, ’cause the torture was so extreme that if you start allowing any of that evidence into a normal court, you create the precedent it’s okay to have extreme torture in a trial as long as you can somehow justify some of the other evidence, that in actually trying him here can create a terrible precedent [inaudible]

RATNER: There’s no doubt that these trials present great difficulties because of what the US has done to the individuals who were defendants. I mean, they’ve tortured Kkalid Sheikh Mohammed. They’ve waterboarded him numerous times. And so, much of the, quote, “evidence” from Khalid Sheikh Mohammed will not be allowed in a federal court and will not be considered reliable. And that means they have to find independent evidence for convicting Khalid Sheikh Mohammed. My assumption is, because they decided to try him in New York at this trial, is that they believe they have independent evidence that will be sufficient to convict Khalid Sheikh Mohammed, apart from the fact that he continually confesses to what he did, and assuming that you can say that that’s distance enough from the torture, those confessions.

JAY: That would be the problem, ’cause the confession itself might be so tainted.

RATNER: Well, the question is: if he confesses today, would that still be tainted? And that will be argued about in court. I don’t know what the strategy of the lawyers are going to be. But it is going to be difficult, in my view as a civil liberties person, to try someone like Khalid Sheikh Mohammed, because, look it, it’s an eight-month trial delay, for starters—I mean eight-year trial delay, rather. And you have a speedy trial rule that says 90 days. So they’re going to have to figure out how to overlook that. They’re going to have to not allow any evidence from torture. They’re going to have to give him the procedural rights. I think in the long run that’s going to protect the United States much better than keeping people at Guantanamo without any kinds of trials. What you can say on this issue is, sadly, Obama has inherited all of the bad things that Bush did, which is keep people and waterboard them. And Bush decided, “Let’s try Khalid Sheikh Mohammed the right way. Let’s do it,” then that would have happened without all of these problems. The problem—I think it’s positive that Obama is going to bring people to trial. I think that’s clearly a break from the Bush administration. The problem is he’s not going to do it all in regular civilian trials like the Khalid Sheikh Mohammed trial in federal courts. He’s still keeping the option of military commissions open, which are rum trials, which are set up post-crime. They’re set up with different rules, and yes, he’s giving better rules than the Bush administration gave, but he’s still using military commissions, and he’s using them because they are easier to [convict people].

JAY: Well, that’s the counterargument, that they think that—they believe these people are guilty, but they don’t believe under traditional law they could convict them. What do you do if that’s [inaudible]

RATNER: Well, my view is that you do the best you can. And then, you know, we have a pretty big surveillance system looking after people in the world. That’s a second way. And the other, the third issue is these people may be wanted in other countries. And the last issue is that’s the way the justice system works, and that’s not the last, ’cause that’s an important issue. I mean, there are probably right now running around the world hundreds, maybe thousands, of alleged terrorists who want to do evil to different countries, different people in the world, etc. The fact that the US or someone gets off after a trial in which they are found not guilty, that’s the way the system works. And that’s what you have to deal with.

JAY: I mean, this—it wouldn’t be the first time a serial killer got loose based on technicality.

RATNER: This happens all the time, and that’s what happens. And maybe it’ll be a lesson to the United States that you don’t torture people for eight years and then decide you want to bring them to trial. So, look it, I’m sitting here in New York at a place—the World Trade Center, and I am less concerned by the fact that some of these people will be acquitted and than that we are setting up a preventive detention scheme and a military commission scheme. So if you look at it, just, say, this deal with Guantanamo, on the one hand you have people brought to trial. On the second hand you have people, they’re brought to trial, and then there’s two ways: military commissions or regular federal trials. Obama is allowing both. Not good. And he’s also going to have a number of people—the number may be 20, it may be 70—kept in preventive detention, which means they’re never going to have a trial. They just keep going back, back, every six months or every year for a hearing, and that to me is unacceptable. That’s unacceptable. And when you look at what has Europe done, Europe doesn’t really have a preventive detention scheme. England has the longest so-called preventive detention scheme: 28 days. Nobody in Europe believes that this is the right thing to do. And if they, who have huge terrorism problems like our own, whether it’s Spain or France or England, don’t have a preventive detention scheme that goes on year after year, why do we need it in the United States?

JAY: Okay. Next segment of our interview, we’ll continue the report card on Obama’s human rights record. Please join us for the next segment of our interview with Michael Ratner.

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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.